State v. Clayton
| Citation | 13 S.W. 819,100 Mo. 516 |
| Parties | The State v. Clayton, Appellant |
| Decision Date | 02 June 1890 |
| Court | Missouri Supreme Court |
Appeal from Hickory Circuit Court. -- Hon. W. I. Wallace, Judge.
Reversed and Remanded.
Amos S Smith for appellant.
(1) The court erred in admitting any testimony under the indictment. (2) The court erred in admitting testimony of the previous difficulty between Allen and Charles Clayton. State v Parker, 96 Mo. 382; State v. Tabor, 95 Mo. 585; State v. Jackson, 95 Mo. 623. (3) The court erred in admitting testimony that Allen was, at the time of the difficulty, acting as town marshal, and was a peace officer.
John M Wood, Attorney General, for the State.
(1) The indictment is sufficient. State v. Hays, 67 Mo. 692; State v. Painter, 67 Mo. 84; State v. McDonald, 67 Mo. 13; State v. Phelan, 65 Mo. 547. (2) The first instruction is drawn under section 1263, Revised Statutes, 1879, and is correct. The second properly defined reasonable doubt. The third is not subject to objection. The fourth instruction on the part of the state and fifth on the part of the defendant gave to him the full benefit of his plea of self-defense, and, if anything, the instructions taken together went farther than the law would strictly warrant, but of this he cannot complain. O'Leary v. Rowan, 31 Mo. 117; 1 Bishop's Crim. Law, sec. 871; State v. Alley, 68 Mo. 124; State v. Stockton, 61 Mo. 382. (3) The testimony as to a difficulty before the one between defendant and deceased only referred to it incidentally in fixing the time when defendant appeared, with his pistol in hand, in search of Allen, and for the purpose of showing that there was a difficulty, and that defendant appeared shortly after in an excited, angry and threatening manner, with his pistol in hand it was competent. The details of the previous difficulty between Allen and other parties were not related. Under these circumstances, the court properly refused the fourth instruction asked by defendant. (4) The evidence admitted related to the difficulty between defendant and Allen. For the purpose of determining the intent of either, their conduct immediately before and after the difficulty was relevant, needs not the citation of authorities, and the objections made by defendant to the admission of testimony is without merit.
Sherwood, J. Barclay, J., does not do so in paragraph four.
-- The charging part of the indictment in this cause is the following: "That Wm. C. Clayton, late of the county aforesaid, on, or about, the seventeenth day of June, 1886, at the county of Hickory, state aforesaid, did, upon the body of one Thos. G. Allen, then and there, being feloniously, on purpose and wilfully, with a deadly weapon, to-wit, a revolving pistol, loaded with gunpowder and leaden balls, which he, the said Wm. C. Clayton, then and there, had and held, did, then and there, make an assault with intent, him, the said Thos. G. Allen, then and there, to kill, against the peace and dignity of the state."
I. The indictment herein attempts to charge a felony, that is, a crime which is liable to be punished by imprisonment in the penitentiary, not one which must be thus punished. R. S. 1879, sec. 1676. This has been the law in this state over fifty years. Stat. 1835, sec. 36, p. 216; R. S. 1845, sec. 36, p. 414; R. S. 1855, sec. 38, p. 645; Gen. Stat. 1865, sec. 33, p. 828; Johnston v. State, 7 Mo. 183; Ingram v. State, 7 Mo. 293; State v. Murdock, 9 Mo. 739; State v. Green, 66 Mo. 631. Being thus a felony, it was indispensable that the indictment should charge that the act, to-wit, the assault, was done with a felonious intent, because without a felonious intent there can be no felony. Curtis v. People, Breese, 256; State v. Swann, 65 N.C. 330; 1 Arch Cr. Plead. 885, 929; 3 Chit. Cr. Law, 788, 828; 2 Bishop Crim. Proc., secs. 79, 651, 653; State v. Thompson, 30 Mo. 470; Beasley v. State, 18 Ala. 535.
The making of an assault like the one under discussion is not a new offense created by statute; it was an offense at common law; but was only a misdemeanor. 1 East P.C. 411. The grade of the offense, however, having been raised to a felony, the common-law rules as to charging felonies must apply, and the act charged like any other felony originating at common law. On this ground it must be held that the indictment is insufficient and that the objections to its sufficiency were well taken.
II. It seems that most of the authorities favor the view that assaults may be charged in general terms, that is, without specifying the means by which the assault was made. 2 Bishop's Crim. Proc., secs. 77, 656. In this state, however, the point has been ruled both ways. Thus, in State v. Jordan, 19 Mo. 212, and State v. Greenhalgh, 24 Mo. 373, it was held essential to state the manner in which the assault was made. In State v. Chumley, 67 Mo. 41, without adverting to former opinions it was ruled that it was unnecessary to allege the manner of the assault. And in State v. Chandler, 24 Mo. 371, it was ruled that the manner of the assault charged need not be alleged. It is, therefore, an open question in this state, and we decide to follow the general current of authorities and the well-established forms and precedents, and hold the present indictment good in the particular mentioned. 3 Chit. Cr. Law 821, 828.
III. Allen, upon whom the assault is charged to have been made, had an encounter, a few moments before the assault occurred, with Charley Clayton in which the latter was shot and killed. Wm. C. Clayton was not present when this passage at arms occurred, and had nothing at all to do with it. Any testimony on this point was wholly irrelevant and should not have been admitted. If there had been any connection shown between the two encounters; if they both had formed but part of the res gestoe, then it would have been different. 2 Bishop Crim. Proc., sec. 662; State v. Johnston, 7 Mo. 183. As it was, an entirely independent matter was injected into the trial of this cause, the only effect of which was to distract the minds of the jurors from the real issues, or else to fill their minds with prejudice against the accused. State v. Parker, 96 Mo. 382, 9 S.W. 728, and cases cited. The court had promised that, "unless defendant's connection with such prior difficulty was shown, he would withdraw it from the jury;" but this was not done; this action of the court, therefore, had the effect to sanction this inadmissible testimony and it went to the jury with the approval of the court impressed upon it. This was error and is condemned by the ruling in State v. Rothschild, 68 Mo. 52, where a similar promise and a similar failure to comply with it occurred.
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