Nichols and another vs. The State.

offenses which are mere misdemeanors at the common law into felonies, when they are punishable by imprisonment in the state prison (Wilson v. The State, 1 Wis., 184); that the degree of punishment is no test of felony; that petit larceny is a felony at common law, and has never been made a misdemeanor by statute, yet the punishment therefor is by imprisonment in the county jail; that our statutes, in numerous instances, declare offenses to be misdemeanors, while declaring them punishable by imprisonment in the state prison (Tay. Stats., 1834, § 55; id., 1843, § 29; id., 1848-9, § 50; id., 1851, § 61; id., 1897,

5); and that our statute defining the word felony when used in a statute, is derived from New York (2 R. S. of N. Y., p. 702, sec. 30), and has frequently been construed by the courts of that state. Keyser v. Harbeck, 3 Duer, 373; People v. Ellis, 15 Wend., 371; Andrew v. Dieterich 14 id., 31; Robinson v. Dauchy, 3 Barb., 20; 1 Wis., 184.

The Attorney General, for the state, argued, 1. That the constitution of this state requires indictments only, and not informations, to conclude "against the peace," etc. 2. That under our statutes every person who shall procure any offense to be committed, which shall be punishable by imprisonment in the state prison, may be convicted as an accessary. Tay. Stats., 1897, § 6; id., 1903, § 2; id., 1906, § 14; The People v. Park, 41 N. Y., 21.

LYON, J. An information was filed in the circuit court against the plaintiffs in error, in which it was charged, in apt and proper terms, that the said Julia Nichols had theretofore concealed the death of a child, the issue of her body, which, had it been born alive, would have been a bastard, so that it might not be known whether such issue was born alive or not, or whether it was not murdered; and that Dudley, the other plaintiff in error, incited and procured her to commit such offense. The paragraph of the information which sets out Julia's offense, does not conclude with the formula "against

Nichols and another vs. The State.

the peace and dignity of the state of Wisconsin;" but the paragraph thereof which sets out the offense of Dudley, does so conclude.

It will readily be perceived that the information is exhibited against Julia as the principal offender against the provisions of the R. S., ch. 170, sec. 6 (Tay. Stats., 1897, § 6), and Dudley as an accessary before the fact, pursuant to R. S., ch. 172, sec. 2 (Tay. Stats., 1903, § 2). The plaintiffs in error were both convicted of the offense charged against them respectively, and sentenced each to pay a fine of one hundred dollars.

But two questions are presented for determination: 1. Can there be an accessary to the offense charged in the information to have been committed by Julia Nichols? and, 2. Is the omission of the formula above mentioned fatal to the information as against her?

1. At the common law there can be no accessaries to any offense below a felony. The offense charged in the information to have been committed by the female plaintiff in error is only a misdemeanor. Hence, in the absence of a statute on the subject, it would necessarily be held that this information cannot be sustained against Dudley.

It is provided by statute that every person who shall be accessary to any felony, before the fact, by counseling, hiring or otherwise procuring such felony to be committed, shall suffer the punishment prescribed for the principal felon, and such person may be informed against and convicted as an accessary before the fact, with the principal felon. (R. S., ch. 170, secs. 1 and 2.) Sec. 14 of the same chapter is as follows: "The term 'felony,' when used in any statute, shall be construed to mean an offense for which the offender, on conviction, shall be liable by law to be punished by imprisonment in the state prison. (Tay. Stats., 1906, § 14). In Wilson v. The State, 1 Wis., 184, decided more than twenty years ago, section 14, just quoted, received a construction. It was there held that this statute does not make an offense a felony which is only a mis

Nichols and another vs. The State.

demeanor at the common law, but that it furnishes a definition of the term "felony" when the same is used in any statute. (P. 194). This construction has been acquiesced in ever since that decision was made, and is doubtless a correct exposition of the statute.

Applying that interpretation to sections one and two, above mentioned, they must be read as follows:

"SEC. 1. Every person who shall be aiding in the commission of any offense, for which the offender, on conviction, shall be liable by law to be punished by imprisonment in the state prison, or who shall be accessary thereto before the fact by counseling, hiring or otherwise procuring such offense to be committed, shall be punished in the same manner as is or shall be prescribed for the punishment of the principal offender."

"SEC. 2. Every person who shall counsel, hire or otherwise procure any offense to be committed, for which the offender, on conviction, shall be liable by law to be punished by imprisonment in a state prison, may be indicted or informed against and convicted as an accessary before the fact, either with the principal offender," etc. (Tay. Stats., 1903, §§ 1 & 2.)

A person convicted of the principal offense charged in this information is liable by law to be punished by imprisonment in the state prison. (Id., 1897, § 6.) The conclusion is irresistible, that such offense, although not a felony, admits of accessaries, by virtue of the statute, and that Dudley could legally be informed against and convicted as an accessary before the fact to the offense charged in the information.

2. Are the words, "against the peace and dignity of the state," at the conclusion of the first paragraph of the information, essential to the validity of the information? The constitution (art. VII, sec. 17), provides that "all indictments shall conclude against the peace and dignity of the state." This formula is a mere rhetorical flourish, adding nothing to the substance of the indictment, and it is difficult to perceive why the mandate for its use was inserted in the constitution. Yet it is there, and

Nichols and another vs. The State.

must be obeyed. We enforced obedience to it in Williams v. The State, 27 Wis., 402. Of course the accused cannot possibly be prejudiced or in any manner misled by the omission of the formula from an indictment, and the use of it is held necessary for the sole reason that the constitution ordains that it shall be used.

In view of the uselessness of the formula, the court would probably be justified in holding that a literal compliance with the constitutional mandate is sufficient, and hence, that if the indictment as a whole concludes in the prescribed form, no matter how many counts it may contain, this is all that is required.

But perhaps a better answer to the objection that the mandate of the constitution has been disregarded in this case, is, that we have here no indictment, but an information. The former is an accusation by the grand jury, the latter by a district attorney; and while the constitution binds the grand jury to the use of a given form of expression in the conclusion of an indictment, it imposes no such obligation upon the district attorney in respect to an information. It being a question of mere style, we find no good reason for extending the operation of the constitutional mandate beyond the limits prescribed by the language of the provision itself. Its operation must therefore be confined to indictments.

information concludes Its use, however, is

It is true that the statute form of an with the formula under consideration. not indispensable to the validity of the information. Laws of 1871, ch. 137, secs. 10 and 11 (Tay. Stats., 1931, §§ 25 and 26). Our conclusion is, that the judgment and sentence of the circuit court, as against both of the plaintiffs in error, should be affirmed.

By the Court.-It is so ordered.

COLE, J., dissents on the first point.

The Town of Byron vs. The State.

THE TOWN OF BYRON VS. THE STATE.

PLEADING. Indictment against town for neglecting to keep town-line road in repair.

The statute declares that "the supervisors of each adjoining town, upon laying out a highway upon the line between such towns, shall determine what part of such highway shall be made and kept in repair by each town." Held, that an indictment against the town of B. for neg lecting to keep in repair a certain part of a certain highway on the line between it and the town of E., was not defective for omitting to aver that the supervisors of said towns, upon laying out such highway, determined that the town of B. should keep in repair that part thereof here in question. An averment that the defendant town was bound by law to keep that part of the highway in repair, is sufficient.

ERROR to the Circuit Court for Fond du Lac County. The town of Byron was indicted for neglecting to repair a public highway at a certain point on the line between said town and the adjoining town of Eden; and a verdict of guilty was found, and judgment rendered thereon, which the defendant town brought to this court for review, by writ of error. The record is not now on the files of this court; but the questions presented thereby, and determined by the court, will sufficiently appear from the opinion.

Coleman & Thorp, for plaintiff in error, contended, among other things, that the indictment should have set forth how the town of Byron became subjected to the duty of making repairs upon that part of the highway which was in question (State v. King, 3 Iredell, 411); that nothing can be intended in support of an indictment, nor can it be extended by inference or implication. People v. Sands, 1 Johns., 78.

Knowles & Babcock, contra, cited Rex v. Great Broughton, 5 Burr., 2700; 2 Chitty's Crim. Law, 339, 345; 2 Saund., 158, note 9; 1 Vent, 331; 1 Stra., 187; 2 Term, 11; and they contended that there was evidence before the jury of the obligation of the town of Byron to repair the highway at the place in question, sufficient to support the verdict..