State v. Rob McTier

45 La. Ann. 440

• Court: Supreme Court of Louisiana
• Decided: March 15, 1893
• Docket: No. 11,186
• Status: Published

Opinion

The opinion of the court was delivered by

Watkins, J.

The defendant, having been tried and found guilty of inflicting a wound less than mayhem, was sentenced to fifteen months’ imprisonment in the penitentiary, and from the verdict and judgment appeals, relying for relief upon a motion in arrest and one for a new trial.

I.

The motion in arrest of judgment is based upon the averment that the information is defective for duplicity in that it charges the defendant with two offences denounced by separate and distinct statutes and the penalties for which two offences are distinct and different, namely, Revised Statutes, Sections 793 and 794.

The charge of the information at which this plea is directed is that the defendant did, “ with force and arms, * * * upon one Reuben Johnson, a person in the peace of the State, then and there being, * * * wilfully make an assault with a dangerous weapon, to-wit, a pistol, and upon him, the said Reuben Johnson, did, then and there, wilfully and maliciously inflict a wound less than mayhem with said pistol.”

While the language of the information is open to verbal criticism, and phraseology is employed that would seem applicable to either section of the statutes referred to, yet, taken altogether, it appears to charge the defendant with wounding less than mayhem. The whole charge is set forth in one continuous sentence, the two parts designated not being even separated by a semicolon, indicating a division of the subject matter, much less is it included in two separate ■counts.

That portion of the charge of the information which declares that the defendant did “make an assault with a dangerous weapon,” may be viewed as simply descriptive of the manner of inflicting the wound less than mayhem. The whole information clearly indicates the commission of but one act by the defendant, and not two separate and distinct acts or transactions.

The charge of duplicity is not made out and motion to arrest was ■correctly refused.

II.

The motion for new trial was overruled and no bill of exceptions was reserved to its refusal, consequently we can not examine it. ■State vs. Wise, 38 An. 684; State vs. Darrow, 39 An. 677.

Judgment affirmed.