Johnston v. State

• Decision Date: 30 September 1841
• Citation: Johnston v. State, 7 Mo. 183 (Mo. 1841)
• Parties: JOHNSTON v. THE STATE.
• Court: Missouri Supreme Court

7 Mo. 183

JOHNSTON

v.THE STATE.

Supreme Court of Missouri.

September Term, 1841.

APPEAL FROM THE CIRCUIT COURT OF BENTON COUNTY.

WINSTON, for Appellant. 1st. As the indictment against the defendant was for a felony, it was error to give a judgment against him for a misdemeanor. 2nd. There was error in permitting evidence of two assaults to be given to the jury, when the defendant was only charged with one.

NAPTON, J.

The appellant was indicted by the grand jury of Benton county, for a felonious assault. The indictment was framed under the 35th section of the 2nd article of the act concerning Crimes and Punishments. The jury found the defendant guilty, and assessed as his punishment a fine of fifty dollars, and twenty-seven days imprisonment in the county jail. It appears from the bill of exceptions, that the appellant had an altercation with one Hughes, and struck the said Hughes with a stick of timber, and a fight ensued between the said appellant and Hughes, during which several blows on the head were inflicted by Johnston with the stick aforesaid. After the parties were separated, it was further proved by the prosecutor, that Johnston immediately seized an axe, and attempted to strike Hughes, but was prevented. This last testimony was objected to by defendant. Motions for a new trial and in arrest of judgment were made, but overruled by the court. The error assigned in this court is, that the indictment was for a felony, and the judgment against appellant was for a misdemeanor. This is a mistake originating, I...