State v. Rambo

• Decision Date: 21 May 1888
• Citation: 8 S.W. 365,95 Mo. 462
• Parties: STATE v. RAMBO.
• Court: Missouri Supreme Court

8 S.W. 365

95 Mo. 462

STATE v. RAMBO.

Supreme Court of Missouri.

May 21, 1888.

1. HOMICIDE — INDICTMENT — ASSAULT WITH INTENT TO KILL.

An indictment charging that four persons named, with malice aforethought, shot at nine other persons named, with intent to kill, is not invalid, on the ground that it charges nine different offenses in one count.

2. SAME — EVIDENCE.

Under an indictment charging four persons with making an assault upon nine other persons, one of the defendants may be convicted although the others are acquitted, and although the proof shows that the assault was made on only one of the nine.

3. CRIMINAL LAW — TRIAL — EXCEPTIONS.

It is not sufficient to except to the giving and refusing of instructions for the first time in a motion for a new trial.

Error to circuit court, Phelps county; C. C. BLAND, Judge.

W. C. Kelly, for plaintiff in error. The Attorney General, for the State.

BLACK, J.

1. The indictment is in one count. The substance of the charge is that Chalmer, Elmer, Alvin, and Addie Rambo, of their malice aforethought, with guns and pistols, and with intent to kill, shot at J. W. Clark and eight other persons, who are named. The evidence for the state shows that John P. Marlow resided in a house which he had procured of Alvin Rambo. This house and a wagon shop, which was used by Rambo, were in the same inclosure, and not more than 30 or 40 feet apart. Marlow had procured the use of the house until such time as he could erect a log-house on his own land, about a half mile distant. On the day of the difficulty, the persons named in the indictment as having been shot at, and others, some 20 in all, including Walter Clark, were assisting Marlow in house-raising. Clark and the Rambos were not on friendly terms, the former having been warned to keep off the premises of Alvin Rambo. Marlow invited the men assisting him to his house for their dinner, and, as they were approaching the house, Alvin Rambo stepped up to the opening in the inclosure with hammer in hand, and at the same time Chalmer Rambo placed a gun over the fence and shot towards the crowd, but Reed hit the gun so that the shot went upwards. At the same time, Clark retaliated by shooting at Chalmer Rambo with a pistol. Elmer Rambo had a gun which he endeavored to use, and Addie Rambo assisted, by reloading Chalmer's gun, which Chalmer fired the second time. There is some evidence that the affray began between Alvin Rambo and Rigden, each claiming that the other made the first assault; but the weight of the evidence is that the Rambos had determined to resist the entrance of the inclosure by Clark, and that Chalmer Rambo made the first assault by shooting. The defendants were all acquitted, except Chalmer Rambo, who was convicted, and sentenced to two years imprisonment. Objection was made to the indictment by motion to quash, and in arrest, on the ground that it charges nine different offenses in one count. The law is now well settled that a man may be indicted for an assault and battery upon two or more persons in one count. 1 Russ. Crimes, (9th Ed.) 1030; Whart. Crim. Pl. (8th Ed.) § 469; 1 Bish. Crim. Proc. (3d Ed.) § 437. Where two or more persons are charged with having committed one offense jointly, they should be joined in the same indictment, (section 1811, Rev. St. 1879;) and they may all be charged as principals in one count. State v. Payton, 90 Mo. 223, 2 S. W. Rep. 394. It follows that two or more persons may be charged in the same indictment and in the same count for an assault and battery upon two or more persons. It was so held in Fowler v. State, 3 Heisk. 154. In Ben v. State, 22 Ala. 11, it was held that an indictment for administering poison to three...