State v. Melvin
| Decision Date | 04 February 1902 |
| Citation | 66 S.W. 534,166 Mo. 565 |
| Parties | THE STATE v. DICK MELVIN, Appellant |
| Court | Missouri Supreme Court |
Appeal from Platte Circuit Court. -- Hon. A. D. Burnes, Judge.
Affirmed.
Guy B Park and James H. Hall for appellant.
(1) The motion to dismiss or quash should have been sustained. Indictment 1716, returned December 9, 1899, was an indictment against Dick Melvin and quashed the prior indictment 1709. R S. 1899, sec. 2522. State v. Anderson, 96 Mo. 245; Austin v. State, 12 Mo. 393; State v Vincent, 91 Mo. 665. Had Dick Melvin been arrested and arraigned under indictment 1716, a motion to quash could not have been sustained. State v. Stacey, 103 Mo. 14; State v. Davis, 29 Mo. 395; State v. Harper, 71 Mo. 427. (2) The indictment being quashed and suspended by operation of statute, no evidence should have been permitted to be introduced. R. S. 1899, sec. 2522. (3) Under the State's evidence, defendant was, if anything, principal. Under the evidence for defense he was neither principal nor accessory. While the law (sec. 2364, R. S. 1899) says an accessory before the fact or principal in the second degree shall, upon conviction, be adjudged guilty of the offense in the same degree, and may be charged, tried and convicted and punished in the same manner as a principal, it does not say that a principal may be tried as an accessory, and certainly it can not intend that one person may be both principal and accessory. There was no evidence on which to base instruction 2 and it is, therefore, erroneous. State v. Trice, 90 Mo. 112; State v. Parker, 106 Mo. 217; Paddock v. Somes, 102 Mo. 226. (4) "Under the facts as disclosed, the instruction should have directed the jury, in passing upon defendant's purpose in leaving the place of assault, whether or not to avoid arrest, to take into consideration the fact that he made no effort at concealment and was found by the officer in his room at his usual place of abode" -- in bed. State v. Fairlamb, 121 Mo. 147; State v. Walker, 98 Mo. 95; State v. Evans, 138 Mo. 127; State v. Hopper, 142 Mo. 482. (5) There was no motive for the crime shown, and the court should have instructed the jury as to the legal effect of absence of motive, whether asked or not. State v. Rufus, 149 Mo. 406; State v. Palmer, 88 Mo. 568.
Edward C. Crow, Attorney-General, and Jerry M. Jeffries for the State.
(1) Where two indictments are found charging the same offense, a proceeding upon either one is perfectly proper after the other indictment has been dismissed. State v. Andrews, 76 Mo. 101. This section of our law does not of itself quash the previous indictment, but simply suspends the same. The intention of the lawmakers could not make this section apply to cases like the one now under consideration. The first indictment would only be suspended until the second is determined and upon trial resulting either in conviction or acquittal, it would then quash the former indictment. It has been held that in a proceeding on a second indictment it is immaterial whether the first indictment be quashed or not. State v. Vincent, 91 Mo. 62; State v. Andrews, 96 Mo. 241. There could be no object or reason in applying the statute wherein the second indictment is quashed before trial is entered upon the first. Indictment 1716 was evidently framed for the purpose and intention of indicting Al. Melvin and charging him with aiding, helping, abetting, assisting, comforting and maintaining the said Dick Melvin in felonious assault, and it does not indict Dick Melvin nor does it attempt to do so, but the simple words, "against the peace and dignity of the State" being found in the body of the indictment would not of itself cause the indictment to be in two counts, nor would it make the indictment a joint one. Indictment 1709 charges Dick Melvin as principal and indictment 1716 charges Al. Melvin as an aider and abetter to the act. Evidently the pleader sought in indictment 1709 to set out the individual acts of the defendant and in indictment 1716 he sought to set out the acts of Al. Melvin and had no intention of charging, and did not charge, the defendant in that indictment. State v. Payton, 90 Mo. 220; State v. Anderson, 89 Mo. 312; State v. Rambo, 95 Mo. 462. (2) The rule in civil practice as to testing the sufficiency of the pleadings by an objection ore tenus to the introduction of evidence does not apply in criminal practice. State v. Duncan, 116 Mo. 288; State v. Myer, 99 Mo. 107. (3) There is no evidence in this cause which would warrant an instruction fixing a lower degree of punishment than is fixed by instruction number one. The defendant is either guilty of assault with intent to kill, or he is not guilty at all. Where two persons jointly commit a murder, the one doing the murderous act and the other being present, aiding, abetting and assisting therein, both are principals, and the indictment in such case may allege the matter according to the facts or charge them both as principals in the first degree. State v. Schuchmann, 133 Mo. 111; State v. Hermann, 117 Mo. 629; State v. Brown, 104 Mo. 365; R. S. 1899, sec. 2364; State v. Miller, 100 Mo. 606; State v. Anderson, 89 Mo. 312. (4) The defendant complains that there was no motive for the crime and contends that the court should have given the jury an instruction on the effect of the absence of a motive for the crime. Under our law, a person is presumed to intend the natural and probable consequences of his acts, and where a person uses a deadly weapon at some vital part without just cause or provocation, it must be presumed to have been done wickedly and from a bad heart. The motive is presumed. This presumption may be rebutted by the testimony of the accused or of others, but there is no such evidence here, and the instruction given was proper. State v. Patterson, 116 Mo. 505; State v. Hall, 85 Mo. 669; State v. Banks, 73 Mo. 592.
The indictment in this cause was returned by the grand jury in the circuit court of Platte county on December 7, 1899, and charged the defendant with a felonious assault. Afterwards, at the same term, another indictment was preferred on December 9, 1899, wherein it was charged that defendant committed a felonious assault upon the same person, one Jeff Simpson, and that Al. Melvin was present aiding and assisting in said felony. When the defendant was required to plead at the November term, 1900, of said court he filed a plea in abatement of the first indictment on which he was arraigned for the reason that he averred that the finding and preferment of the said second indictment ipso facto quashed the first indictment, and that it was no longer pending, and prayed the judgment of the court to discharge him, and that said first indictment to which he was required to plead should be quashed.
The indictment found on December 7, 1899, was numbered 1709, and the indictment of December 9, 1899, was numbered 1716. On the hearing of this plea the two indictments with the dates of their filing were offered, and read to the court, and on the part of the State the record of the court showing that on August 14, 1900, on motion of the prosecuting attorney, the said second indictment numbered 1716 had been quashed by the circuit court of Platte county, and the defendant discharged therefrom. The circuit court overruled the plea in abatement and to quash the indictment and directed the defendant to plead to said indictment of December 7, 1899, and the defendant standing mute, a plea of not guilty was entered for him on the record, and the cause proceeded.
On the part of the State the evidence tended to prove that on Sunday, October 29, 1899, the defendant's mother and his brother, John Melvin, lived in the village of Waldron in Platte county, and just across the street a brother of Jeff Simpson, the prosecuting witness, lived. The defendant, Dick Melvin, and his brother, Al. Melvin, who at that time was only seventeen years of age, were and had been for some time at work in the State of Kansas, just across the Missouri river from Waldron. There they met one Al. Owens. On Sunday, October 29, 1899, the three went to Waldron, the two Melvin boys ostensibly for the purpose of getting some new clothes their mother had made for them. They reached Waldron between three and four o'clock on the afternoon of that day. Al. Melvin took the lead when the three men left his mother's home, the defendant and Owens following him very closely. Jeff Simpson was just outside of the yard fence at his brother's house when Al. Melvin saw him and without any apparent cause whatever said, "There is the d -- d devil now, I can soon fix him," and rushed across the street at Simpson. Throwing a small bundle he had in his hands aside, he took out his knife and assaulted Simpson, who repelled the attack, knocked off the blows and struck young Melvin in the face with his hand. While this strife was thus proceeding, Dick Melvin, the defendant, with a knife in his left hand, rushed up behind and to the left of Simpson and stabbed him. The knife passed through the walls of the abdomen and entered the abdominal cavity, creating a wound which confined him to his room and bed for a month, and was considered by the physicians as extremely dangerous and hazardous. Immediately after the cutting, the defendant, Al. Melvin and Owens hurriedly left the State and the defendant when arrested was in the State of Kansas, and at first refused to return to Missouri without requisition papers, but finally did so. When defendant saw the blood from Simpson's wound he said, "My God, boys, let's hit her for Kansas," and they all three ran off as fast as they could go, and crossed the river into Kansas.
On the part of defendant the evidence tended to show that Jeff...
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