State v. Daugherty

• Citation: 17 S.W. 303,106 Mo. 182
• Parties: STATE v. DAUGHERTY.
• Decision Date: 12 October 1891
• Court: United States State Supreme Court of Missouri

17 S.W. 303

106 Mo. 182

STATE v. DAUGHERTY.

Supreme Court of Missouri, Division No. 2.

October 12, 1891.

MALICIOUS MISCHIEF — INDICTMENT — EVIDENCE — INSTRUCTIONS.

1. On a trial for maliciously killing a mule, evidence that when the shot wounds were first seen on him he was in the county of his habitat, and that he wandered home and died in a few hours, is sufficient to support a finding that he was shot in that county, though defendant lived about there miles distant, "just over the line," in another county.

2. Where the record shows that the original indictment was filed in April, 1883, and in April, 1888, the grand jury returned a second bill for the same offense, and in October following a third bill, and that the second bill was then quashed, the admission of parol evidence that the first indictment was quashed in April, 1888, will not be adjudged prejudicial error; since, under Rev. St. Mo. 1879, § 1808, which provides that, if two indictments against the same defendant are pending for the same offense, the indictment first found shall be deemed to be suspended by such second indictment, and shall be quashed, the filing of the second indictment operates to quash the first.

3. Though the first indictment was not introduced in evidence, the court may properly take cognizance thereof as part of the record of the case.

4. An instruction to convict defendant if the jury found that he was indicted at the April term in 1883, that the indictment was quashed in 1888, and that defendant within three years prior to April, 1883, willfully and feloniously killed the mule, was not defective, though it submitted to the jury a question which the record clearly showed, and which, therefore, was for the judge to determine.

5. The fact that, after the jury had reported that they could not agree, the court stated to them orally "that, if it was about the punishment they could not agree, to return a verdict, and the court would fix that matter," will not be adjudged prejudicial error, where the jury did not follow the instruction, but returned a verdict fixing defendant's guilt and punishment.

Appeal from circuit court, Ozark county; J. F. HALE, Judge.

Indictment of Daugherty for willfully and maliciously killing a mule. Verdict of guilty. Defendant appeals. Affirmed.

M. B. Clarke, for appellant. The Attorney General, for the State.

THOMAS, J.

Defendant was indicted in the Ozark circuit court for willfully and maliciously killing a mule, and having been found guilty thereof upon trial had, and sentenced to imprisonment in jail for six months and to pay a fine of $50, appealed to this court.

1. The first contention for a reversal of the judgment is that there was no evidence whatever that the offense was committed in Ozark county. It appears from the record that James A. Baker, who owned the mule that was killed, lived in Bakersfield, Ozark county, Mo., and that defendant lived about three miles from Bakersfield, "just over the line," in Howell county; how far from the line does not appear. The mule came home, and died in a few hours, having been shot in the right side with small shot. The court instructed the jury that they should acquit the defendant, unless they found, beyond a reasonable doubt, that he shot the mule in Ozark county. The only question for us, therefore, to determine is, was there sufficient evidence to go to the jury as to the venue? "Proof of the venue as laid in the indictment, like any other material allegation, need not be established by express and positive testimony; but it is sufficient if the circumstances in evidence tend to the conclusion, in a manner satisfactory to the jury, that the place of the crime corresponds with that set forth in the indictment." State v. McGinniss, 74 Mo. 245, and cases cited; Com. v. Costley, 118 Mass. 1; Beavers v. State, 58 Ind. 530. There was no evidence whatever as to where the mule was when he was shot, but when the wounds on him were first seen he was in Ozark county, and he died in that county; that was his habitat, and we think it was a question for the jury, from all the circumstances, to say whether the mule was shot in that county or not.

2. The second contention is that the court erred in refusing to sustain a demurrer to the evidence on the ground that the proof showed that the offense was barred by the statute of limitations. The offense was committed in the fall of 1882, and the indictment on which the conviction was had was found in October, 1888. This indictment avers, however, that at the April term of the circuit court of Ozark county, 1883, an indictment was duly presented by the grand jury for the same offense, "which indictment was at the April term of that court, 1888, quashed, and...