Michael Conolly, plaintiff in error, v. The People of the State of Illinois, defendants in error, 3 Scam. 474

Wilson, Chief Justice. '•ered the opinion of the Court: The plaintiff in error w¡ ment charging him with an f No exception was taken to the Court below. The cas several errors are assigned Court below. ed and convicted upon an indict-It, with intent to commit a robbery, indictment before or after trial, in brought here by writ of error, and .he reversal of the judgment of the The first count of the ir intent with which the assaul and this is omitted to be cha tment is unquestionably bad; the as made is the gist of the offence, id in the count.

The second count charges that the defendant, Michael Conolly, (and two others who are named, but were not tried,) late of the said county, on the 5th day of December, 1841, in the county of Cook aforesaid, in and upon the person of George H. Germain, in the peace of the People of the State of Illinois, then and there being, with force and arms, did make an assault with an intent, then and there, unlawfully, wilfully, and feloniously to commit a robbery, and other wrongs to the said George H. Germain, did then and there, &c.

The exception taken to this count is, that it does not charge who was intended to be robbed, nor of what. The first is doubtless a material fact, and must be plainly charged in the indictment to make it a good one. Is it so charged, then, is the question to be decided ? Under the provisions of our statute, we think it is, although it might be otherwise at common law. By the 152d

section of the criminal code, it is enacted that “ Every indictment of the grand jury shall be deemed sufficiently technical and correct, which states the offence in the terms and language of this code, or so plainly that the nature of the offence may be easily understood by the jury and by the 153d section, it is provided that “ All exceptions which go merely to the form of the indictment, shall be made before trial, and no motion in arrest of judgment, or writ of error, shall be sustained, for any matter not affecting the real merits of the offence charged in the indictment.” These provisions were intended to simplify the rules of proceeding in criminal cases, and to do away with those niceties and technicalities of the common law, which made distinctions where there was no difference, and which were thought often more to impede the administration of justice, than to promote it.

They were intended to vest in the Court, to some extent, a sound legal discretion as to the form of the indictment, more especially when no exception is taken to it before trial. No danger can result to the accused, from the possession of this discretion by the Court, for all that is essential to a clear statement of the offence, so that it may be easily understood, is still required; and this is all that is important for the accused, or his triers to know.

If the offence is not set out with clearness and precision, the Court will, upon motion, quash the indictment; but after the accused has submitted, without objection, to be tried under an indictment, an objection that is raised, after conviction, will not be regarded, if it relates only to form, and not to an obvious and substantial defect. This indictment charges that Michael Conolly, in and upon the person of George H. Germain, made an assault, with an intent to commit a robbery, and other wrongs to the said George H. Ger-main, did then and there.

This charge is not in the usual form, and evinces great negligence or want of skill, in the State’s Attorney, but taking all together, and connecting the charge of the assault upon Germain, with an intent to commit a robbery, with that which immediately follows, of doing other wrongs to the said Ger-main, and the obvious and common sense import of the language, to the mind of every juror would be, that Conoily made an assault upon Germain, with an intent to rob him and otherwise injure him; and if such would be the understanding of a jury, then the indictment is sufficiently technical and correct, under the sections of the statute referred to, unless we deny to them the only operation they are capable of.

The objection that the subject matter of the intended robbery is not stated, is without foundation. The nature of the charge that the defendant intended to commit a robbery, implies that he intended to take something, the taking of which would constitute the crime of robbery. As the robbery was not committed, it was impossible to know of what it was intended; and had it been known, it was unnecessary to name it, as the offence would have been the same, let the thing intended to be taken, have been what it might. No general rule more precise than that given by the statute can be laid down by the Court.

The sufficiency of each indictment, under the statute, must, from necessity depend upon its own peculiar terms and language; and although we think the accusation in this case so “plainly stated that the nature of the offence may be easily understood by the jury,” and that a conviction under this indictment would be a bar to any future prosecution for the same offence, and that it is consequently sufficient, so that an objection now made for the first time cannot prevail; yet this view of the subject is not to be understood by State’s Attorneys, as a license to experiment in the discharge of their duties, by neglecting approved forms.

The judgment is affirmed with costs. Judgment affirmed. Lockwood, Justice, did not ear the argument in this case, and gave no opinion. R. L. 307-8; Gale’s Stat 228.