Ingram v. State

• Decision Date: 30 April 1842
• Citation: 7 Mo. 293
• Parties: INGRAM v. THE STATE.
• Court: Missouri Supreme Court

7 Mo. 293

INGRAM

v.THE STATE.

Supreme Court of Missouri.

April Term, 1842.

APPEAL FROM THE CIRCUIT COURT OF BENTON COUNTY.

WILSON & WINSTON, for Appellant.

TOMPKINS, J

Ingram was indicted, and the indictment charges that he willfully and feloniously did make an assault upon the body of one Lewis Johnson, and did willfully and feloniously beat, bruise, wound, disfigure, and greatly injure the said Lewis Johnson, &c. The jury found Ingram guilty in manner and form as charged in the indictment, and assessed against him a fine of forty dollars. The appellant moved for a new trial, first, because the verdict was contrary to evidence; second, because the jury has in its verdict assessed the penalty of a misdemeanor, when the indictment alleges only a felony. On the second reason for a new trial it may be observed that at the last term of this court in this district, a similar objection was made against the indictment found against Johnson, and the court then decided that the indictment was good.

A felony under our statute is an offense for which one may be imprisoned in the penitentiary. The offense for which the appellant is now indicted is one that may be punished either by imprisonment in the penitentiary, or fine and imprisonment in the county jail, or by fine alone. See 7 Mo. R. 183.

The evidence in the bill of exceptions shows that Josiah Ingram, a brother of the appellant, on the day this act for which the appellant was indicted was charged to have been committed, frequently abused Lewis Johnson, and challenged him to fight; that the appellant advanced towards Josiah Ingram and Lewis Johnson, who were engaged fighting, seized the arm of Johnson, and held it while Josiah Ingram bit the finger of Johnson. This finger was afterwards amputated; and in the opinion of the surgeon who performed the operation, the necessity for amputation was produced by the act of biting. It was further proved that before the parties had closed with each other, William Ingram had reproved his brother Josiah for his improper behavior towards Johnson, and after they were engaged, he had called on the bystanders to aid in parting the combatants.

No instructions are saved in the bill of exceptions, and we are bound to presume that if the Circuit Court gave any, that they were correctly and properly given.^(a) Indeed, if we may be allowed to look into the clerk's history of the case, we find one asked and given for the State, and one for the defendant, and no exception charged by the...