State v. Burk

Citation2 S.W. 10,89 Mo. 635
PartiesThe State v. Burk, Appellant
Decision Date15 November 1886
CourtUnited States State Supreme Court of Missouri

Appeal from Carroll Circuit Court. -- Hon. James M. Davis, Judge.

Affirmed.

Hale & Sons and Kinsey for appellant.

(1) As the charge was specific and complete the defendant could be tried on no other; only on section 1262, Revised Statutes; section 22, of Bill of Rights, accords the right "to demand the nature and cause of the accusation." (2) As the offence was complete under section 1262, it was error to instruct the jury under another section; but otherwise if good under such other section. State v. McDonald, 67 Mo. 13. (3) If the law has been changed by the insertion of section 1655, in the Revised Statutes of 1879, a general verdict cannot be sustained upon two sections. State v Webster, 77 Mo. 566. (4) The verdict of the jury fails to show upon what section or in what degree the defendant is guilty. R. S., sec. 1927; 47 Mo. 295; 58 Mo. 556; 65 Mo. 640; 68 Mo. 120; State v. Matrassey, 47 Mo. 295; State v. McCue, 39 Mo. 112. (5) Referring to section 1655, of the Revised Statutes of 1879, admitting that offences under section 1263 are necessarily included in the higher offence described in the preceding section, it could never have been the intention of the legislature to take from a defendant the right to know the accusation and the degree of guilt of which he is convicted.

B. G Boone, Attorney General, for the state.

(1) Defendant saved no exceptions, at the time, to the admission or exclusion of evidence, or the giving or refusing of instructions. It is too late to do so for the first time in the motion for a new trial. State v. Marshall, 36 Mo. 400; State v. Pints, 64 Mo. 317; State v Williams, 77 Mo. 310; State v. Burnett, 81 Mo. 119; State v. McDonald, 85 Mo. 539. (2) The instructions not having been preserved the presumption is that the court properly declared the law to the jury. State v. Sullivan, 51 Mo. 522; State v. Tucker, 84 Mo. 23. (3) The motion for a new trial is improperly copied into the record proper, instead of being made a part of the bill of exceptions. It is no part of the record proper, and not having been made a part of the record of the case, by being incorporated in the bill of exceptions, it will not be considered. State v. Marshall, 38 Mo. 400; State v. Connell, 49 Mo. 232; State v. Sweeney, 68 Mo. 96; State v. Dunn, 73 Mo. 586; State v. McCray, 74 Mo. 303. (4) The judgment in the case should be affirmed.

Ray, J. Henry, C. J., not sitting, and Sherwood, J., expresses no opinion.

OPINION

Ray, J.

The defendant, Henry Burk, was tried and convicted, at the March term, 1883, of the Carroll circuit court, upon an indictment for a felonious assault with intent to kill one John Dozier. The indictment is framed under section 1262, Revised Statutes, and (omitting its formal parts) charges that Henry Burk, at, etc., on, etc., in and upon John Dozier, feloniously, on purpose and of his malice aforethought, did make an assault, and did then and there, on purpose and of his malice aforethought, feloniously shoot at him, the said John Dozier, with a certain revolving pistol loaded with powder and leaden balls, which he, the said Henry Burk, then and there held in his right hand with intent, then and there, him, the said John Dozier, on purpose and of his malice aforethought feloniously to kill and murder, against the peace and dignity of the state of Missouri. This indictment is conceded to be sufficient and in due form under said section.

The verdict of the jury who tried the cause (omitting the signature of the foreman), is as follows: "We, the jury, find the defendant, Henry Burk, guilty, and assess his punishment at two years in the penitentiary." The judgment is in conformity to the verdict and in due form. The evidence in the case is not preserved in the bill of exceptions, and in its absence, the presumption is, it is conceded, that it was pertinent and relevant to the issue on trial presented by the indictment. The motion for a new trial, though appearing in the record proper, is not preserved in the bill of exceptions, which practically contains nothing except the motion in arrest of judgment and an agreement between the counsel for the state and the defendant, to the effect "that at the trial the jury were instructed on sections 1262 and 1263, Revised Statutes, 1879," but these instructions are not copied or preserved in the record, and in their absence must be presumed to have been correct. The only objection of defendant's counsel, as I understand him, is, that any instruction whatever was given under section 1263, under this indictment. It may also be added that it does not appear that any objections or exceptions were made or saved at the time to the giving of said instructions.

The motion in arrest of judgment is as follows:

"Defendant by his attorney moves the court to arrest the judgment and set aside the verdict in this case for the following reasons:

"1. Because the court erred in overruling the motion for a new trial.

"2. Because the record in this cause is not sufficient in law to authorize the judgment rendered.

"3. Because upon the whole record of the case the judgment should have been for the defendant."

Upon this state of the record defendant's counsel relies upon the following points for a reversal of the judgment in this case, as stated by him in his brief:

"1. As the charge was specific and complete the defendant could be tried on no other. See section 22, of Bill of Rights, to demand the nature and cause of the accusation.

"2. As the offence was complete under section 1262 it was error to instruct the jury under another section.

"3. If the law has been changed by the insertion of section 1655, Revised Statutes, 1879, a general verdict cannot be sustained upon two sections.

"4. The verdict of the jury fails to show upon what section, or in what degree the defendant is guilty. Sec. 1927, R. S., 1879.

"5. Referring to section 1655, Revised Statutes, 1879, admitting that offences under section 1263, are necessarily included in the higher offence described in the preceding section, it could never have been the intention of the legislature to take from a defendant the right to know the accusation and degree of guilt upon which he is convicted."

If I understand the position of defendant's counsel it is that, except for the alleged error of instructing the jury at all on section 1263, under this indictment, there would have been no cause for a reversal; that, whatever insufficiency or uncertainty in the record or verdict of the jury, if any, is attributable to the giving of that instruction. He concedes, if I understand him, that in the absence of said instruction, the record and verdict would be amply sufficient and certain in law to support the judgment rendered, and there would, in that event, have been no error in the record, or cause for the defendant to complain of a violation of the constitutional bill of rights in not notifying him of the nature and cause of the accusation against him. This, I think, is the contention of defendant's counsel as I gather from the brief before us.

In the first place it may be remarked that it has been repeatedly held that where no objections were made or saved at the trial, and in the motion for a new trial that it is too late to raise that objection for the first time afterwards. State v. Marshall, 36 Mo. 400; State v Pints, 64 Mo. 317; State v. Preston, 77 Mo. 294; State v. Williams, 77 Mo. 310; State v. Burnett, 81 Mo. 119; State v. McDonald, 85 Mo. 539. But waiving that objection...

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13 cases
  • State v. Talmage
    • United States
    • United States State Supreme Court of Missouri
    • 22 Diciembre 1891
    ...be legally tried, as if the indictment had in the first instance only been for murder in the second degree. R. S. 1889, sec. 3949; State v. Burk, 89 Mo. 635; State v. Lane, 64 Mo. 324; Com. v. 109 Mass. 349; Jennings v. Com., 105 Mass. 586; Baker v. State, 12 Ohio St. 214; Com. v. Tuck, 20 ......
  • State v. Belyea
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    • United States State Supreme Court of North Dakota
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  • State v. Sivils
    • United States
    • United States State Supreme Court of Missouri
    • 23 Junio 1891
    ...... State v. Griffin, 98 Mo. 672; Morrison v. Lehew, 17 Mo.App. 633. (2) Where the evidence in the. case is not preserved in the bill of exceptions, the. presumption is that it was pertinent and relevant to the. issue on trial, presented by the indictment. State v. Burk, 89 Mo. 635. And where the evidence adduced upon. the trial is not preserved in the bill of exceptions, this. court will assume that it warranted the instructions given. State v. Brown, 75 Mo. 317; State v. Mallon, 75 Mo. 355. (3) The record on page 173 shows. that on the second day of ......
  • The State v. Brent
    • United States
    • United States State Supreme Court of Missouri
    • 2 Junio 1890
    ...... . .          The. cross-examination of defendant urged by appellant as error. was not called to the attention of the trial court in the. motion for a new trial, and is not subject to review by this. court. State v. Reed, 89 Mo. 168; State v. Burk, 89 Mo. 635; State v. Emory, 79 Mo. 461;. State v. Preston, 77 Mo. 294. . .          . OPINION. . .           [100. Mo. 532] Ray, C. J. . .          -- The. defendant was indicted in the circuit court of Hickory county. for assault with intent to kill, and ......
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