#### JAMES M. HANEY, Plaintiff in Error, *vs.*THE STATE OF WISCONSIN, Defendant in Error.

ERROR TO DANE CIRCUIT COURT.

A defendant sentenced to a punishment different from that .presented by the statute defining the offence of which he is convicted, may assign such sentence for error, though of less severity than that prescribed by the statute.

"Where the defendantwas indicted for an assault with intent to murder, being armed with a dangerous weapon, to wit: a pistol loaded with gunpowder and lead, and on conviction was sentenced to pay a fine of $200, while the statute prescribed punishment by imprisonment in the state prison not more than five years, nor less than one year, and the defendant brought error; Held, such judgment unauthorized by statute and erroneous.

"Where the statute specifically describes an offence, and specifically prescribes the punishment therefor, all other kinds and degrees of punishment are excluded and unauthorized.

The defendant was indicted at tbe April term, A. D. 1851, of tbe Dane Circuit Court. Tbe indictment after tbe caption was in tbe following words:

“ At a term of tbe Circuit Court for tbe county of Dane, begun and beld at tbe capitol, in tbe village of Madison, on tbe sixteenth day of April, in tbe year of our Lord one thousand eight hundred and fifty-one:

“ The grand jury, good and lawful men of tbe county of Dane and state of Wisconsin, duly summoned and then and there im-panneled, sworn and charged to inquire for the state of Wisconsin in and for tbe body of tbe county of Dane, and state aforesaid, upon their oaths aforesaid, do present that James M. Haney, late of the county of Dane and state of Wisconsin, on tbe first day of April, in tbe year of our Lord one thousand eight hundred and fifty-one, in tbe county of Dane aforesaid, with force and arms, in and upon one Thomas Arland, in tbe peace of God and tbe state of Wisconsin then and there being, did make an assault, and tbe said James M. Haney being then and there *530armed with a dangerous weapon, to wit: a pistol then and there loaded with, gunpowder and leaden bullet, which he, the said James M. Haney, in his right hand then. and there held and pointed at the said Thomas Arland, then and there unlawfully and maliciously did shoot, with intent then and there and thereby willfully and of his malice aforethought, the said Thomas Ar-land to murder, against the form of the statute in such cases made and provided, and against the peace and dignity of the state of Wisconsin.”

The defendant having been arrested and arraigned, pleaded not guilty, and was tried and found guilty in manner and form as charged in the indictment.

Afterwards the defendant, by his counsel, moved in arrest of judgment, for the following reasons-:

1. The indictment found herein does not charge that the assault was made with a felonious intent to commit murder or any ojiher crime.

2. The indictment does not charge that the assault was committed with any intent whatever.

3. The indictment does-not charge that the defendant was armed with any dangerous weapon at the- time of making the assault.

. 4. The indictment does not charge any offence to have been done feloniously.

5. The verdict being in general terms, the court cannot render a judgment, because two offences are charged in the indictment, to wit: an assault, and a shooting with intent to murder.

.. There was also filed a motion for a new trial, which, together with the motion in arrest of judgment, was overruled; whereupon the judgment was entered upon the verdict as follows:

.“It is considered and adjudged by the court, that the said defendant, James M. Haney, do pay a fine of two hundred dollars and costs of prosecution, and that he stand committed to the common jail of Dane county until the same be paid.”

*T.*Hood, for the plaintiff in error.

*Wm. B. Smith,*attorney-general, for the state.

*531
      *By the*Court,

Smith, J.

This case bas been a long time on the calendar, and is now submitted without argument or brief on either side, and will be briefly disposed of..

. .It seems-- that the defendant was indicted under .the 35tb section of chapter 133 of the Revised Statutes, which provides as follows:-' • , .

> “ If any person, being armed with a dangerous weapon, shall assault another with intent to rob or murder,.he shall be punished "by imprisonment in the state prison not more than five years ■ p.or less than .one year."

The defendant was convicted om the trial, after which motions in arrest, of judgment and for a new trial were made, but as the flatter is not made part of the record by bill of exceptions, the former only, together with the record as presented, are open for consideration and adjudication here.; These motions were severally overruled, and the defendant: was, sentenced to pay a fine of two hundred dollars, and costs of prosecution.,

We find no assignment of errors, and no briefs of counsel, and are, therefore, wholly- uninformed of the .points relied .upon- by the counsel for the plaintiff in error, or by the attorney-general.

From an inspection of the indictment, however, we- presume that the main error relied upon by the plaintiff in error is, that the sentence of the court is not- in conformity with that prescribed by the statute for the offence described in the indictment.

The punishment prescribed for. the offence of-.which the defendant was convicted, is “ imprisonment in the state prison, not more than five years, nor less than one year.’.’.

It is apparent that the sentence pronounced, by the court on conviction upon this indictment, is-.not the,one: prescribed by the statute, and is, therefore,.unauthorized .by law. . .

It is unnecessary to cite authorities to show that-the defendant in a criminal case maymssign error upon.-a -judgment which is not conformable to .the law of the case,-although such,judgment is of .less, severity than-that .which .the law. prescribes.

We think it can hardly admit, of a. doubt, that the indictment *532in this case is'based upon the 35 th section of chapter 133 of the Revised Statutes, which is as follows:

> “ If any person, being armed with a dangerous weapon, shall assault another with intent to rob or to murder, he shall be punished by imprisonment in the state prison, not more than five years, nor less than one year.”

There has been no objection to the sufficiency of the indictment, under this section of the statute suggested to us, and we cannot doubt but that it was framed with express reference to its provisions, and that it is adequate to the material and substantial requirements of the statute. If these views are correct, the sentence pronounced by the court upon the conviction of the defendant, is not the sentence which the law prescribes, nor one which the law authorized the court to pronounce, and, therefore, cannot be sustained.

We have examined sections 31 and 32 of the same chapter, in order to ascertain whether the judgment of the court' could be sustained upon a fair construction of their provisions. They are as follows:

> “ § 31. If any person with malicious intent .to maim or disfigure, shall cut out or maim the tongue, put out or destroy an eye, cut or tear off an ear, cut or slit, or mutilate the nose or lip, or cut off or disable a limb or member of any person, every such person so offending, and every person privy to such intent, who shall be present, aiding in the commission of such offence, shall be punished by imprisonment in the state prison, not more than five years, nor less than one year, or by fine, not exceeding one thousand dollars, nor less than two hundred dollars.

> “ § 32. If any person shall assault another, with intent to murder, or to maim or disfigure his person, in any of the ways mentioned in the next preceding section, he shall be punished by imprisonment in the state prison, not more than five years, nor less than one year, or by fine not exceeding one thousand dollars, nor less than one hundred dollars.”

Without stopping to indulge upon any criticism upon the peculiarity of the language of the 32d section as it may be there applied to an assault with “ an intent to commit murder in any *533of tbe ways mentioned in tbe next preceding section,” viz: by cutting out or maiming tbe tongue, putting out or destroying an eye, cutting or tearing off an ear, cutting or slitting or mutilating tbe nose or lip, or cutting off or disabling a limb or member of any person, it is sufficient to remark, that this language, referring to tbe means by which tbe offence thereby described is to be accomplished, can have no appbcation to tbe offence described in this indictment, because tbe instrumentality which is made a *sine qua non*accompanying tbe felonious intent mentioned in tbe 35th section, is specifically designated in tbe indictment in this case; viz : tbe being armed with tbe dangerous weapon by which that intent was to be carried into execution. Tbe dangerous weapon is named in tbe indictment, tbe intent of tbe assap.lt, being so armed, together with tbe malice aforethought, which would seem to preclude a reference of tbe offence described in tbe indictment to any other specification than that of tbe 35th section. Then, as tbe punishment of tbe offence described by that section is specifically described by that statute, all other degrees of punishment than such as are there prescribed, are necessarily excluded and unauthorized.

It would seem to be unnecessary to extend our remarks any further than we have, to call attention to tbe obvious intention of tbe several statutes that might seem to have relation to tbe subject matter, and the language of tbe indictment itself.

The judgment of the court below not being in conformity with tbe statute, is reversed.