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used. ']^herefore the conclusion is inevitable that, to
be guilty of an assault with intent to rape, the accused
must have intended to use such force; it being impos-
sible for bim to intend to rape, without intending to
do that which constitutes rape. See 1 Bishop Crim.
Law, If 729, 781, 745. There can be no doubt of the
soundness of this doctrine. We have seen that in law
a man does not intend to commit a particular offense,
if the act he intends would not, when fully performed,
•onstitute such offense. The conclusion from all the
authorities is that nothing short of the specific intent
to commit the substantive offense will answer. And
in rape, and in assault with intent to commit rape, the
party cannot be said to intend to commit the substan-
tive offense unless be uses or intends to use all such
forecasts necessary to overcome all resistance; and
unless the Jury are so charged, the charge will fall to
inform them as to what is requisite to constitute the
substantive crime.

Wilson, J., dissents, saying:

According to my understanding of the statute, if a
man assaults a woman with the specific intention to
have carnal connection with her by force, against her
will, he commits the offense of assault with intent to
rape. The assault is the use or attempted use of force,
and the intent requisite to constitute the crime is not
an intent to use the force contemplated in article 529,
iuprat or any specific character of force, but is an in-
tent to forcibly, and against the will of the woman,
have carnal connection with her. The force intended
to be used by the assaulting party may not be such as
might reasonably be supposed sufficient to overcome
resistance, taking into consideration the relative
strength of the parties, and other circumstances of the
case; yet if there was an assault, and the assaulting
party intended to ravish the woman, or at least to
make the attempt to do so, taking the chances of being
able to accomplish his design, I think he would be
guilty of an assault to rape. To illustrate: A man
meets a woman in day-light in a city, on a public
street, in the presence of hundreds of peop'e. He is a
small, delicate man; she is a large, athletic woman.
He assaults her, and attempts to throw her down, and
the evidence conclusively shows that his intent is to
have carnal knowledge of her without her consent.
He could not reasonably suppose that he could over-
eome her resistance, or that the people present would
allow bim to accomplish his design, yet he may un-
reasonably believe that perchance he can succeed, and
may make the effort under such unreasonable belief,
willing to take the chances of the venture. Would he
be guilty of an assault with intent to rape? I think he
would, but under the opinion of the majority of the
•ourt, as I understand it, he would not be guilty of
that offense.



Thb power of a telegraph company to re-
strict its liability, was considered by the
Supreme Court of New Mexico, in Western
Union Tel. Co. v. Longwill, 21 Pac. Rep.
889. There it was held that a telegraph
company cannot stipulate that it will not be



liable for damages on account of negligence

in the delivery of a message, unless a claim

therefor in writing is presented within sixty

days from the date of the receipt of the

message. The court says :

In Railroad Co. v. Lockwood, 17 Wall. 357, Mr. Jus-
tice Bradley, after an exhaustive discussion of tho
question of the power of the common carrier to stipu-
late for exemption from liabiUty on account of negli-
gence, or want of proper care on the part of the carrier
or its agents, sums up the conclusions of the court as
follows: *H1) That a common carrier cannot stipulate
for exemption from responsibility, when such exemp-
tion is not Just or reasonable in the eye of the law. (2)
That it is not Just and reasonable in the eye of the law
for a common carrier to stipulate for exemption from
responsibility for the negligence of himself or his serv-
ants.'' While the weight of authority is perhaps
against classing a telegraph company as a common
carrier, still the same reason that makes void the con-
tracts of common carriers for exemption from respon-
sibility for the negligence of the carrier or its em-
ployees, makes void the same kind of contracts of
telegraph companies. Telegraph Co. v. Blanohard, 68
Ga. 299; Tyler v. Telegraph Co., 60 III. 421; Telegraph
Co. V. Cohen, 78 Qa. 622; Telegraph Co. v. Dry burg,
85 Pa. St. 298; Telegraph Co. v. Brown, 58 Tex. 170.
While telegraph companies are not charged with all
the duties and responsibilities of common carriers, they
cannot contract for restriction of liability for injuries
occasioned by culpable negligence or gross careless-
ness, or willful misconduct of their employees. White
V. Telegraph Co., 14 Fed. Rep. 710. The courts are
divided in opinion as to whether a stipulation between
the sender of a message and the company, provided
that a claim for damages shall be presented within a
day^amed, or within a reasonable time, can be entered
into and upheld as a contract. Instead of being a
reasonable business regulation, we think the condition
named and annexed to the message was an effort on
the part of the company to restrict its legal liability to
sixty davs. It would introduce into the local Juris-
prudence of every State, territory, or country in which
it is sued a spedesof private sutute of limitation, or
non-claim.. It would avoid the policy of the State or
territory in the matter of the time in which actions
both in tort and contract should be brought. But
aside from this we think there can be no sound reason
for holding that in cases where no contract for total
Immunity from legal responsibility can be made, none
can be made for a conditional release or discbarge,
because public policy alike denies the power to con*
tract on the subject in either instance. In support of
this view, in addition to the cases therein referred te,
we cite the following: Johnston v. Telegpraph Co., 88
Fed. Rep. 862; Telegraph Co. v. Cobbs, 47 Ark. 844,
1 S. W. Rep. 558; Telegraph ^Co. v. McKibben, 14 N.
£. Rep. 894.

As to the effect of a release and discbarge of a Joint
tort feasor, the Supreme Court of Pennsylvania, in
Seither v. Phil. Traction Co., 17 Atl. Rep. 838, hold
that, where one injured by a collision between two
cars of different companies accepts a certain sum in
full of all claim for the injuries against one of the com-
panies, and executes a release, in which he agrees to
prosecute the other company, and reimburse the first
out of the amount recovered, such agreement and re-
lease bar an action for the lame injuries against the
other company, citing Tompkins v. Railroad Co., 66
Cal. 165. ^ T

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PROSECUTION BY INFORMATION.



I. When an Information will Lie.
II. What is an "Infamous" Crime.

III. Formal Kequisites of an Information.

1. The Affidavit or Complaint.

2. Form and Contents of the Information.

3. Naming the Accused or Person Injured.

4. Conclusion and Signature.
6. Filing.

IV. Charging the Offense.

1. In General.

2. Alleging the Acts Constituting the Offense.

3. Charging Two or More Offenses.

4. Averments as to Time and Place.
V. Amendment and Substitution.

I. When an Information will Lie. — ^The
fifth amendment to the constitution of the
United States provides that *'no person shall
be held to answer for a capital or otherwise
infamous crime, unless on a presentment or
indictment of a grand jury, except in cases
arising in the land or naval forces, or in the
militia, when in actual service in time of war
or public danger.*' Whether a crime is an
* 'infamous" one, within the meaning of this
provision, depends upon the character of the
punishment which a conviction will entail,
rather than upon the effect of such conviction
upon the party's competency to testify as a
witness.^ But neither this constitutional pro-
vision nor the phrase **due process of law"
in the fourteenth amendment can operate to
prevent the States from adopting the proce-
dure by information, even in capital cases. ^

In early times informations were princi-
pally, if not exclusively used, in the federal
courts, in prosecutions for the recovery of
fines and forfeitures, such as those imposed
by the revenue and embargo laws,'^ or the
stamp laws,^ or liquor laws ;^ but in more re-
cent times this mode of instituting a prose-
cution has become more general in those

1 Ex parte Wilson, Crira. L. Mag. 007, 072, disap-
proving, as to this point, a number of United States
circuit and district court decisions. U. S. v. Shepard,
1 Abb. (U.S.) 431; U. S. v. Maxwell, 3 Dill. (U. S.)
375; U. S. V. Block, 4 Sawy. (U. S.) 211 ; U. S. v. Miller,
3 Hughes (U. S.), 553; U. S. v. Baugh, 4 Id. 501, 1 Fed.
Hep. 784; U.S. v. Yates, Fed. Rep. 801; U. S. v.
Field, 21 Blatchf. (U. S.) 330, 10 Fed. Kep. 778; In re
Wison, 18 Fed. Rep. 33.

2 Hurtado v. People, 110 U. S. 510; State v. Boswell
(Ind.)> 7 Crim. L. Mag. 743, and cases the're cited.

8 U. S. V. Hill, 1 Brock. 150, 158; U. S. v. Mann, 1
Gall. 3, 177; -Walsh v. U. S., 3 Woodb. it M. 341; Story
ConKt., § 1780.

* U. S. V. Isham, 17 Wall. (U. S.) 490; U. S. v. Buzzo,
18 Id. 125.

5 U. S. V. Block, 4 Sawy. 211, 213.



courts, several respectable cases holding the
doctrine that no crime is * infamous," within
the meaning of the constitution, that has not
been declared to be so by congress;^ a con-
clusion in which the supreme court does not
concur, however.^

In California, murder may be prosfecuted
by information.^ In Indiana, one charged
with felony may demand that he be so pros-
ecuted without delay.^ In Louisiana, in
other than capital cases, the district attorney
may elect to prosecute either by indictment
or information.^^ In Hampshire, a crime not
capital nor punishable by imprisonment for
more than one year, may be charged in an
information.^^ In Texas, misdemeanors pun-
ishable by imprisonment may be so prose-
cuted. '^ An(j in Connecticut, the holding of
an indecent exhibition, may be.^^

But where a statute requiring an indict-
ment is repealed, an information will not lie
for an offense committed prior to the repeal;"
nor can an information be filed at a term of
court at which the accused was recognized
to appear, after the discharge of the grand
jury without finding an indictment. ^^

II. What is an **Infamous" Crime. — The
true distinction between infamous and non-
infamous crimes, as respects the use of in-
formations in their prosecution, is undoubt-
edly this : A crime punishable capitally, or
by inprisonment in a State's prison, or peni-
tentiarj', is infamous — one not so punishable
is not. Thus, it has been held that an offense
punishable by imprisonment for a term of
years, at hard labor, is infamous ;^^ and pun-
ishment by imprisonment for more than one
year has been held to be * infamous" pun-



6U. S. V. Wynn, 3 McCrary, 260; U. S. v. Petit, 11
Fed. Kep. 58; U. S. v. Cross, 1 MacArih. 149.

"^ Ex parte WiUon, (i Crim. h. Mag. 007, 674. The
word ^'indicted" in U. S. Rev. Slat., § 1032, has been
held to include a prosecution by information. U. S. v.
Border, 19 Blatchf. (U. S.) 249.

8 People V. Campbell, 59 Cal. 243, 3 Crim. L. Mag. 29.
And the same rule prevails in Manitoba. Queen v.
Connor, 2 Man. L. J. 235.

» Heanley v. State, 74 Tnd. 99. See also Davis v. State,
09 Ind. 130.

lostate V. Cole, 38La. Ann.843; s. P., Douglas v.
State, 72 Ind. 383.

ii State V. Ingalls, 59 N. H. 88.

12 Ileddick v. State, 4 Tex. App. 32.

13 Knowles v. State, 3 Day, 103.

14 People v. Tisdale, 57 Cal. 104.

15 State v. Boswell (Ind.), 7 Crim. L. Max- 743.

16 Ex parte Wilson, 6 Crim. L. Mag. 607. See also
Jones v. Uobbins, 8 Gray (Mass.), 829. 849.

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519



ishment.^^ On the other hand, it is held that
stealing from the mails ;^® a conspiracy to
make counterfeit coin ;*^ passing base money so
made ;^ and embezzlement,^^ are not infamous
crimes within the meaning of the fifth amend-
ment to the constitution of the United States.

While it is well settled that incompetency
to be a witness is not the test of infamy in
this connection, but rather the punishment to
be inflicted upon the accused in dase he be
found guilty;^ yet whether an offense, to
the conviction and punishment of which a
disqualification to hold office is appended by
statute, is thereby made infamous, is a mat-
ter of some question. ^^

An * infamous punishment" is not to be
limited to, or held to mean a **cruel or un-
usual punishment,'* because such punish-
ments are absolutely forbidden by the federal
and State constitutions, whether the proce-
dure leading up to them be by indictment or
information.^*

III. Formal Requisites of an Information.
— 1. The Affidavit or Complaint. — In the
federal practice, to properly institute a pros-
ecution by information there must first be a
complaint, supported by an oath or affirma-
tion, showing probable cause, followed by
an arrest and examination ; and if the ac-
cused is held to bajl or committed, the district
attorney, on filing the magistrate's or com-
missioner's return with the proofs, will have
leave to file the information.^^ In Indiana,
the affidavit as well as the information must
state that the defendant is in custody on the
charge preferred against him, and that the
grand jury of the county is not in session.^^
An information is necessary as well as an
affidavit, and if there be no information, and
no offer to file one, the affidavit will be

17 U. S. V. Todd, 25 Fed. Eep. 816. See also U. S. v.
Brady (Stor Route Case), 8 Crlm. L. Mag. 69.

18 U. S. V. Wynn, 8 McCrary (U. S.), 266, 9 Fed. Rep.

QQA

WU.S.V. Burgess, 8 McCrary (U. S.), 278, 9 Fed.
Rep. 896.

20 U. y. V. Field, 21 Blatcbf. (U. 8.) 330; U. S. v.
Gates, 2 Crim. L. Mag. 620.

» U. S. V. Reilly, 20 Fed. Rep. 46.

a Exparte Wilson, 6 Crim. L. Mag. 667, 671, citing 4
Bl. Comm. 94, 95, 810; Cooley Const. Lim. 291.

28 See U. S. V. Waddell, 112 U. S. 76, 82.

^Exparte Wilson, supra^ at p. 674.

25U.S.V. Shepard, 1 Abb. (U. S.) 431; U. S. v.
Miller, 1 Sawy. (U. S.) 701.

26 Lindsay V. State, 72 Ind. 39; State y. Henderson,
74 Ind. 23.



quashed and the prosecution ended.^ So
also, the information will be quashed if the
affidavit be insufficient, e. rj. if it fail to name
with certainty the county and State in which
the alleged offense was committed. ^^

In Texas, also, a misdemeanor cannot be
prosecuted in the county court by a mere
complaint without an information ;^ and an
information is insufficient, which, without
itself alleging the inculpatory act, refers to
the '^affidavit which is herewith filed and
shows'* the commission of the act by the ac-
cused.^ The affidavit is indispensable, and
must appear as part of the record on appeal.^^
The * 'credible person** who may make it
means a competent as well as a credible wit-
ness.^ The essential facts may be stated on
information and belief.^*^

2. Form and Contents of the Information, —
No standard of penmanship is required in an
information, and reference may be made to
the supporting affidavit to solve a doubt as
to the spelling of a word.^ The information
need not show that the accused has been held
to answer, or that the charge has been found
true by a grand jury ;^ or that there has
been any examination before a committing
magistrate ;^ or why the prosecution was not
commenced by indictment.^

A description of the prosecutor as '*prose-
cuting attorney,** instead of as '^county at-
torney," is not a fatal defect ;^^ and it need
not be alleged that he informs under his offi-
cial oath.®

3. Naming the Accused^ or Person Injured,
— ^The name of the accused should be alleged,
but an information for conspiracy may be
against a single individual, naming the co-



» state V. First, 82 Ind. 81. s. p., in Missouri, State
V. Huddleston, 75 Mo. 667; State v. Sebecca, 76 Mo. 55;
State V. Kelm, 79 Mo. 515; State v. Briscoe, 80 Mo. 643.

«* State V. Beebe, 83 Ind. 171.

29 Garza v. State, 11 Tex. App. 410.

» Brown v. State, 11 Tex. App. 451 ; Thomas v. State,
12 Id. 227.
- 81 Wadgymar v. State, 21 Tex. App. 459.

32 Thomas v. State, 14 Tex. App. 70.

38 Toops V. State, 92 Ind. 13. s. P., Brown v. State,
11 Tex. App. 451. In Louisiana, however, such an
affidavit is insufficient, and an amendment cannot be
allowed. U. S. v. Theraud, 20 Fed. Rep. 62.

84 Irwin V. State, 7 Tex. App. 109.

85 U. S. V. Moller, 16 Blatchf . (U. S.) 65.
8e People v. Shubrick, 57 Cal. 565.

87 State V. Fraln, 82 Ind. 532.
38 SUte V. Nulf , 15 Kan. 404.
89 State V. Sickles, Brayt. (Vt.) 132. ^^ ^

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conspirators;^ and an alias dictum in the
affidavit will not cause a variance between it
and the information.^ The information is
amendable as regards names ;^ and it seems,
the name of the person injured or killed, or
intended to be, need not be alleged.^

4. Conclusion and Signature. — ^The conclu-
sion should be, as in an indictment, ^^against
the peace and dignity' of the State ;"*^ but
where it concludes ''against the form of the
statute," etc., and the offense charged is not
a statutory one, the words quoted may be re-
jected as surplusage.^

Where there are a number of counts the
signature of the prosecuting officer may be
affixed to the last count only, the pages of the
instrument being all fastened together ;^ and
the deputy district attorney may subscribe
his principal's name.^^ An information may
be good even though unsigned, if accom-
panied by the sworn complaint made before
the prosecuting officer.*^

5. Filing. — ^The information may be filed
in the office of the clerk of the court, at the
same time as the affidavit upon which it is
founded ;^ or as soon as convenient ; "^ and
if the information and its supporting affidavit
be attached to each other, or if both be written
on the same sheet of paper, and the clerk's
file-mark be put upon the outside fold, it is a
substantial compliance with the statutory re-
quirement that the affidavit ''shall be filed
wKh the information.""

IV. Charging the Offense. — 1. In Gen-
eral. — ^The information being the official act
of the public prosecutor, and not the act of
person upon whose affidavit it is based, it
must clearly appear upon its face, that the
cbaege against the accused is preferred by
the official prosecutor.^ The information
must be self-sufficient, irrespective of the
'affidavit, though it should conform to the

^ People v. Richards (Cal.), 6 Orim. L. Mag. 856.

.41 Harrison v. State, 6 Tex. App. 256.
*'' ^i State V. Murphy, 65 Vt. 547.

^ State V. Newton, 30 La. Ann. pi. II, 1253. And see
Rivers v. State, 10 Tex. App. ITi.
, *< Calvert v. State, 8 Tex. App. 538.
? ** Southworth v. Slate, 5 Conn. 325.

-^ State V. Paddock, 24 Vt. 812.

47 t»eople V. Darr, 61 Cal. 554; U. S. v. Nagle, 17
Blatchf. fU. 8.) 258.

« Rasberry v. State, 1 Tex. App. 664.

« State v. DeLong, 88 Ind. 812.

M People ▼. Haley, 48 Mich. 495.

»» Scbott v. SUte, 7 Tex. App. 616.

« Prophit V. Slate, 12 Tex. App. 238.



latter as respects all material averments. If
necessary allegations are wanting in the in-
formation they cannot be supplied by the
affidavit ; it is the information, not the affi-
davit, that the accused is called upon to an-
swer.^ If a good and sufficient charge of
the offense is set out, the insertion of nnnee-
essary averments is not fatal.^ So, if the
allegations are positive, it is not essential that
the preliminary examination of the prosecnt-
ing witness be in writing.^ But an informa-
tion merely charging the accused to be guilty,
as the distinct attorney verily believes, is bad
on motion to quash.^

An information for a firit offense need not
allege that it is for a first offense ;^ but an
information for additional punishment must
set forth the previous convictions with suf-
ficient particularity to identify them, and
show the character of the offenses charged."

An information for a statutory offense
must identify and distinguish it from every
other, and set forth specifically its statutory
components ;^ but in general, it is sufficient
to follow the language of the statute ; and if
the defendant insist upon greater particu-
larity, he must show that the case falls within
some exception to the general rule.*^

2. Alleging the Acts Constituting the Offense.
— ^The acts relied upon as constituting the
offense must be set out. WThus, an informa-
tion for cheating, or for conspiracy to cheat
and defraud, must set out and describe the
pretenses and devices, and indicate the means
whereby the cheat was to be accomplished,
and specify the person or persons sought to
be cheated ;^ an information for exhibiting a
show must state acts of indecency, barbarity,
or immorality, in order that the conrt may
see whether the offense is within the statute,
or is an offense at common law ;^ and wh^e
a penalty is imposed for ''each hour of delay"
in doing a certain act, an information whkfa

<8 Pittman v. State, 14 Tex. App. 576.

M SUte V. Welch, 87 WU. 196; Smith ▼. State, 85 lad.
553.

» People ▼. Hare (Mich.), 7 Crim. L. Mag. 188.

M VannaU v. SUte, 81 Ind. 210.

ff Kilbounie v. SUte, 9 Ck>nn. 500.

« Wilde y. Com., 2 Hetc (Mass.) 406. See akt
Evans ▼. Com., 8 Id. 453.

9» Hall V. People, 48 Mich. 417.

«> WbiUng ▼ SUte, 14 Conn. 487; Brewer v. State, i
Tex. App. 248; People v. Lewis, 61 Cal. 866.

•1 People V. Arnold (Mich.), 8 Crim. L. Mag. •;
SUte y. Johnson, 1 Chip. (Vt.) 129.

tt Knowlee ▼. SUte, 8 Day (Conn.), 108.



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omits to allege the number of hours delay
with which the accused is charged, is fatally
clefective.®

Where the information names one offense
and the facts stated in it constitute a different
one, a conviction for the offense named will
be set aside.^

3. Charging Two or More Offenses. — ^While,
as a general rule, an information charging
two or more distinct offenses is bad on de-
murrer ^ — as where larceny is charged in one
oount and embezzlement of the same property
in another,^ yet it is held in Kansas, that
where the separate offenses are all misde-
meanors of a kindred character, and charged
against the same person, they may generally
be joined in separate counts in one informa-
tion, to be followed by one trial for all, with
a separate conviction and punishment for
•each, the same as though all such offenses
were charged in separate informations and
tried at different times.^

However that may be in other jurisdictions,
an information is not objectionable as charg-
ing two offenses, when it charges but one
offense punishable by the authority prosecut-
ing, even though another offense, cognizable
in another jurisdiction, may be also set out
therein.^ And the allegation of a former
conviction is not a distinct charge of another
triable offense, so as to make the information
objectionable.®'

4. Averments as to Time and Place. — ^The
averment as to the time of the commission of
the offense must be of a day certain, prior to
the filing of the information, and within the
period limited for the prosecution of the of-
fense ;^ and the date must not be an impos-
sible one, such as **A. D. one thousand eight
and seventy five." ^*

So also, the place of the crime must be
stated in the information ; the complaint can-
not be referred to to supply the defect ;^ but

tt Linney v. Sute, 5 Tex. App. S44.

•« WaUon V. State, 29 Ark. 299.

«s People y. QuvUe, 56 Cal. 896.

M People V. De Coursey, 61 Cal. 184.

^Statev. Chandler, 81 Kan. 201. See also SUte v.
Schweiter. 27 Id. 499.

<B State V. Smouse, 49 Iowa, 684. See also State v.
Collins, 88 La. Ann. 152; Town of Eldora y. Bur-
lingame, 61 Iowa, 82.

« People ▼. Boyle, 64 Cal. 158.

^ SUte V. Ingalls, 59 N. H. 88; Kennedy v. State, 22
Tex. App. 698: Beglna v. Ingalls. 42 L. T. 588.

'1 Blake ▼. SUte, 8 Tex. App. 149.

^ Liwson T. SUte, 18 Tex. App. 88.



if the venue is properly laid in the caption,
the body of the instrument may refer to the
caption for the venue.^

If the proof as to the sUwi of the crime
differs from the allegation the variance will
be fatal ;^^ and the same is true as to the
allegation of time of commission of the of-
fense, where the afiSdavit and information do



Online LibraryAugustus John Cuthbert HareThe Central law journal, Volume 28 → online text (page 139 of 151)