84
FEDE:aAL :aEPORTER,VOl.
40.
<leedingone thousand dollars, and imprisoned not exceeding one The offense defined in this law is declared by it to be a misdemeanor. The one. defined as an assault with intent to kill is an infamous offense, and a party can only be tried for it after all indictment found by a grand jury. The petitioner was tried for an assault with intent to kill, upon an information. This cannot be done. But it is claimed that the court for the Indian country, although it does not have jurisdiction of an assault with intent to kill, may take an act that is an offense of this character ;Rn.d carve out of it the offense prescribed by section 25 of the act of March 1, 1889, and proceed to try, convict, and punish the party for an offense thus found to exist. Can this be done? What is the real crime that .existed, and of which the showing made by the makes the petitioner guilty? Assault with intent to kill. Then, in legal parlance, he is guiltyof no other crime. There was no crime such as is prescribed in the twenty-fifth section of the act of March 1, 1889, which, as an offense, had an independent existence. The lesser crime in such a case is mergeqin the,higher one. Whenthe proof shows a felony, by the law based on public policy, the misdemeanor disappears. When a court <loes not bavejurisdiction to try the infamous offense, the hiw, .founded policy, as well as upon good faith to the party tried, deupon mands that the. party shall not. be tried for the by such -court, as by this method of proceeding, if it were the law, a person might -escape punishment fora high offense by going before a court that had the right to, try misdemeanors alone and pleading guilty, and receiving an inadequate punishment. But, fiS cannot be done, it is agreu.t injustice tQ a party that he should be tried and convicted twice for the same act. The verdict of the jury. and judgment of the court in this case is no protection to petitioner, for the reason that the offense of which he was tried .wasa misdemeanor, as it is the rule of the law that a trial and c<Jllviction, or acquittal, of a is no bar to another indictment for a felony. People v. Smmder8; 4 Parker, Crim, R. 196; Dinkey v. Com., 17 Pa. St. 126. . To make atrial and conviction or acquittal of a person an a bar t() another trialfor the same act, the ,accusation,wl;1ether made by indictment or information, must be such as that the 'person might have been fopnd guilty and sentenced on it for the act ofwhich he is accused a second time, and 'for which he is puton trial a second time. If, in the trial in this qase, the petitioner could not have been found guilty of an assault with intent to kill, because the ,court had no jurisdiction to try such an offense, then he cannot setup his trial and. conviction before that courtas a bar to a trialandconviction before the court having jurisdiction to try him for such act upon a ,charge of assault with intent to kill. D'inkey v. Com., rrupraj state v. Hattabough, 66 KIf a man been once fairly tried. there ol1ght to be anp.nd of tbeaecu'sation forever·., 'fheright not to be put in jeopardy a second ,time:for the 'Same cause is as sacred as .the right uf trial by jury. and is guardec;l with . mu!,:h t4E! llJ,w . .' :
EX fARTE BROWN.
85
A trial of a party before a C6urthaving nO jurisdiction, ora judgment that is illegal, may harass and annoy a person as much as though it was legal. Therefore it is that he must be tried for an act by a court having jurisdiction, and in a legal way, that he may be protected. Mr. Wharton, in his Criminal Law, (volume 1, § 563,) says: "The true test is, could there have been a conviction of the major offense at the time of tbe conviction 01' acquittal of tbe minor? If so, then such conviction or acquittal of the minor is a bar. The reason is that, by convicting or acquitting of the minor on a count in which the major is contained. the defendant is virtually acqUitted of the major." In this (',ase the offense of which petitioner was convicted is the minor one. and that of assault with intent to kill is the major one. The court at Muskogee had no jurisdiction of the major offense. Therefore, the petitioner, by his .conviction and sentence there, is not protected against another trial upon the same facts for an assault with intent to kill, by a court having jurisdiction of such offense. When such a' state of case exists" a court C:111not carve out of the higher offense, of which it has no jurisdiction, one of less grade, and try the party for it, as this is unjust to the public, and it may be unjust to a party charged, and therefore it' is against the policy and of the law. To authorize it to do so, have jurisdiction of both offenses, and at the trial the party is found guilty of the one,<?f less grade the charge must be so made as upon th!!t indictment the party might be found guilty cif the major offense. The misdemeanor in this case is clearly merged in the felony, and the courts Inllst always try for the crime committed. In Wright v; State, 5 lJ,ld. 527, the court said: ".Assault.and ,battery, whi.ch is simply a misdemeanor, is not included in any of the degrees of bomicille. The misdemeanor is merged in the felony. The merger of the misdemeanor in the felony is as complete in the case of an assault and battery with intent to commit murder as where the murder is .committed. " In 2 RusselI on Crimes (9th Ed. p. 1026) occurs this paragraph: '''rhus, where the defendant was indicted for a misdemeanor. in burning a house in his own occupation, such bouse being alleged to be contiguous and adjoining to Qertain dwelling-houses of divers liege sul:>jects. etc., lind the facts of the ·case. as stated by the counsel for the prosecution. appeared to be that the defendant set fire to his own house in order to defraud an insurance ollice· .and that in consequence several houses of other persons adjoining to his own were burnt down. BULLER. J., said that,1f other persolls' houses were in fact burnt, although the defendant might only have set fiteto his own, yet, under these circumstances, the prisoner was guilty, if at all, of felony. (the misdemeanor being merged,) and could not be convicted on this indictment; and therefore he directed an acquittal." If the court at Muskogee can carve a lesser offense out lora higher one, of which it has no jurisdiction, justice might be defeated; because out ·{)f every assault with intent to kill there might be carved an aggravated .assault, and in this way out of an infamous offense---i\ felony:-:-a. meanor:maylbe made, and, it might be, inadequate punishment istered. .As 1 have said,this policy would be against public justiQe. If the court l!;t Muskogee had of $0 assault kill.
FEDERAL
vol. 40.
and the petiti:oner bad beenindjoted for that offense and convicted of an ltggravatedaesRult, he could not complain, as such a proceeding would protect him against any furthedrial;but, as the court at Muskogee has no jurisdictiooofassaults with intent to kill, it cannot put a person on trial for that bffense; nor can it igtl.ore the higher offense for the purpose of taking jurisdiction of the lesser one. ' Congress intended that theM;uskogee court should try parties only for lesser offensE!. In this case .the information shows that the offense is one of which the Muskogee co'urt, pas no jurisdiction. the allegations of the information in this case determine the jurisdiction. I am clear that, upon the statement in theinforruation, and the facts as stated by Mr. Walrond; the offense' is that of an assault with intent to kill. It is said th"t perhaps the petitioner shot at the legs or Bousted, and that hence U',Was only an aggravated assault. Might not death ensue fr.om such. A?d, i(sol is it not an assaul.t with intent.to kIll? It IS SQ, because the 111tE'nt anti purpose of the prIsoner was to 111flict such a wou,nd as that from it, and, when he did a wicked imd ,w!ltlton act like this, neither he nor the prosecuting attorney has any right to carve out, a lesser crime because, perchance, the assailed might hot died. .It is enough to know that dev,th might have followed., Is not the main artery of a man's leg aIm,ost as vital as the heart, 'It was not claimed for the prisoner, that he only intended a wound, or that he aliiled atany particular part of the legs. If he shot-at' Bousted's legs inll. rec.kless manner, is he then entitled to such an interpretation of his wicked conduct as that he 'only intended to wound Bousted" so as to cause suffering or little suffering, but not to such ,eitent aFl to endanger:;Iife? How are we to distinguish in such a be.tween what Wigllf have been great bodily harm and ,a slightinjury?If heactua11y shot at Boustedwith'8.,45 caliber pistol, without cause or excuse, then is he not held to have intended such resuits as might probably have ensued from the act? ;There can be no differenet} between an intent, coupled with an act, to inflict such a wound as would probably result in long suffering and final death, and an intention to shoot a man through the heart, coupled with ,the' act of firing. In such a (lase, if carving out a less offense is to be done, what line are we, to cal'veto? and where·sha:Il we end? Upon what principles, or by what, allthQrity, can it be that, because a man ehootsat another man's, legs he otlly intended to inflict a slight wound? The intent was clearly to wound. Could a man know·beforehand what sort of a wound he was going to inflict? The prisoner is presumed to know the nature of the weapon used, as well as the dangerous conse. quences' of the 1!Ise.· I am satisfied that the court at Muskogee had no jurisdiction to try the ·petitioner of the ·offense that he is really guilty, of, and he, is therefore entitled to:a discharge from arrest. I desire to say, in to all these cases. which' have been before me on haheas corpus,that I think the government has made 8. mistake. By this mistake these petitioners have been deprived. of their liberty; they have been harassed by a
an