State v. Anderson

• Citation: 158 S.W. 817,252 Mo. 83
• Parties: THE STATE v. JAMES ANDERSON, Appellant
• Decision Date: 09 July 1913
• Court: Missouri Supreme Court

158 S.W. 817

252 Mo. 83

THE STATE v. JAMES ANDERSON, Appellant

Supreme Court of Missouri, Second Division

July 9, 1913

Appeal from Texas Circuit Court. -- Hon. L. B. Woodside, Judge.

Affirmed.

Lamar Lamar & Lamar for appellant.

Elliott W. Major, Attorney-General, and A. W. Stewart for the State.

(1) The information conforms to the requirements of the statute and properly charges the offense. R.S. 1909, sec. 4481; State v. Bond, 191 Mo. 567; State v. Prendible, 165 Mo. 332; State v. Borton, 142 Mo. 453. (2) The complaint upon which the defendant was held charges him with malice aforethought to maim and kill and murder. The fact that the justice of the peace labeled the case mayhem does not estop the prosecuting attorney from filing an information charging defendant with assault with intent to kill. When several intents are charged the proof of either is sufficient. State v. Chumley, 67 Mo. 44. (3) By the amendment to the Constitution adopted in November 8, 1900 indictments and informations become concurrent methods for prosecution of felonies. Constitution, art. 2, sec. 12; State v. Kyle, 166 Mo. 287; State v Bouner, 178 Mo. 424; State v. Gregory, 178 Mo. 55. The information in this case was verified by the prosecuting attorney, and filed with the clerk of the court, March 4, 1911. The grand jury was not impaneled until March 6, 1911. The mode of procedure first instituted for any offense shall be pursued to the exclusion of the other, so long as the same shall be pending and undetermined. R.S. 1909, sec. 5055; State v. Gieseke, 209 Mo. 339; State v. Harvey, 214 Mo. 408. (4) On an application for a change of venue because of the prejudice of the inhabitants of the county, the Supreme Court will not interfere with the discretion of the trial judge, who heard the evidence, in overruling the application, unless it appears that such discretion has been palpably abused. State v. Brownfield, 83 Mo. 448; State v. Wisdom, 84 Mo. 184; State v. Burgess, 78 Mo. 235; State v. Atchley, 186 Mo. 174; State v. Thompson, 141 Mo. 414. (5) The prosecuting attorney dismissed as to the second count of the information. The first count is good. The character of the charge is not determined by the complaint filed before the justice of the peace. All that the justice is required to find is that a felony has been committed and probable cause to believe the prisoner guilty thereof. State v. Jeffries, 210 Mo. 320; State v. Sassaman, 214 Mo. 719. (6) The court permitted the State to introduce evidence of the shot fired by the defendant with the rifle. This was a part of the res gestae. The court very properly instructed the jury, in defendant's third instruction, that they could only consider the evidence of such shooting in passing upon the motive or intent of the defendant. (7) Novella Anderson, the wife of appellant, was a competent witness to testify to the assault made on her by the defendant, when she volunteered to testify. 1 Greenleaf on Evidence, sec. 343; Wharton, Crim. Ev., sec. 393. (8) Gladys Anderson, ten-year-old daughter of appellant and his wife, who is the prosecuting witness, was, after the preliminary examination by the trial judge, permitted to testify. The competency of a child to testify is wholly within the discretion of the trial judge. 1 Greenleaf on Evidence, sec. 367; State v. Jeffries, 210 Mo. 326.

FARIS, J. Brown, P. J., and Walker, J., concur.

OPINION

FARIS, J.

Defendant was tried in the circuit court of Texas county on the charge of assault with intent to kill. He was convicted and his punishment assessed at ten years' imprisonment in the penitentiary. From the sentence imposed, after the usual motions for a new trial and in arrest, he has appealed.

The information, which was attacked, both by a motion to quash and a plea in abatement, and the contents of which therefore become pertinent, is, omitting caption, as follows:

George H. Scott, prosecuting attorney within and for the county of Texas, and State of Missouri, informs the court upon his oath of office that on or about the 24th day of December, 1910, at and in the county of Texas, in the State of Missouri, one James Anderson, then and there in and upon one Novella Anderson then and there being feloniously, on purpose and of his malice aforethought, did make an assault and did then and there feloniously, on purpose and of his malice afore-thought, shoot and wound her, the said Novella Anderson, with a certain shotgun then and there loaded with gunpowder and leaden balls, which shotgun he the said James Anderson in his hands then and there had and held, with the intent then and there her, the said Novella Anderson, feloniously, on purpose and of his malice aforethought then and there to kill and murder against the peace and dignity of the State.

And the prosecuting attorney aforesaid for other and further complaint upon his oath of office informs the court that on or about the 24th day of December, 1910, at and in the county of Texas, and State of Missouri, one James Anderson, in and upon one Novella Anderson, then and there being, unlawfully, feloniously, on purpose and of his malice aforethought, did make an assault and with a deadly and dangerous weapon, to-wit, a shotgun, then and there loaded with gunpowder and leaden balls, which he, the said James Anderson, in both of his hands then and there had and held at and against her, the said Novella Anderson, then and there unlawfully, feloniously, on purpose and of his malice aforethought, did shoot off and discharge and with the shotgun aforesaid and the leaden balls aforesaid, then and there unlawfully, feloniously, on purpose and of his malice aforethought, did shoot and strike her, the said Novella Anderson, in and upon the left arm of her the said Novella Anderson, giving to her, the said Novella Anderson, then and there with the dangerous and deadly weapon aforesaid, to-wit, the shotgun aforesaid and gunpowder and leaden balls aforesaid, in and upon the left arm of her, the said Novella Anderson, a certain wound of the breadth of three inches and of the depth of three inches, of which wound the said left arm of said Novella Anderson is wholly and permanently disabled, with the intent then and there her, the said Novella Anderson, on purpose and of his malice aforethought to kill and murder, against the peace and dignity of the State.

George H. Scott,

Prosecuting Attorney.

George H. Scott, prosecuting attorney, being sworn, upon his oath states that the facts stated in the foregoing information are true according to his best information and belief.

George H. Scott.

Subscribed and sworn to before me this 4th day of March, 1911.

Joe C. Stites,

Circuit Clerk.

Briefly stated the grounds urged in the motion to quash were (a) that the information was duplicitous and that two separate and distinct offenses were thereby charged, to-wit, assault with intent to kill and mayhem; (b) that the information is vague, indefinite and uncertain and does not fully inform the defendant of the charge preferred against him, and against which he is required to plead and defend himself; and (c) that the offense charged in the information is a separate and distinct offense from that set out in the complaint which was filed before the justice of the peace. This motion to quash was overruled and defendant saved his exceptions in due form.

Defendant also, as above forecast, attacked the information by plea in abatement, which plea was bottomed upon the averred objections, in substance, (a) that no preliminary examination before a justice of the peace was accorded defendant before the filing against him of the information herein; (b) that the information was not based upon the affidavit of any witness having personal knowledge of the facts stated therein, and (c) that the prosecuting attorney has no authority to institute a prosecution for a felony by information when the grand jury is in session, or when a grand jury has been summoned and will shortly be in session. This plea was, also, by the court overruled, and defendant duly saved his exceptions to the action of the court in such behalf.

The facts as shown by the record touching this plea in abatement are that a complaint was filed by one G. T. Mires, who was the father of the person alleged to have been the victim of the assault charged. This witness had no personal knowledge of the assault, except that he came to the scene of the shooting, saw the condition of his daughter, and some four weeks thereafter, no one else acting, he filed a complaint before a justice of the peace. This complaint is full and formal. If any objection can be urged against it it may be said to be too full. It charges an assault with intent to kill with a felonious intent, closing, however, with these words: "With the intent then and there, her the said Novella Anderson on purpose and of his malice aforethought, to main [sic] and kill and murder, against the peace and dignity of the State." Upon the docket of the justice of the peace it is stated that defendant was by said complaint charged with mayhem. A preliminary hearing was duly accorded to defendant and he was by the justice of the peace held in bail to await the action of the circuit court. Subsequent to this preliminary hearing and before the convening of the next term of this circuit court and before the impaneling of the grand jury (which term of court began and which grand jury was impaneled on the 6th day of March, 1911), the prosecuting attorney, on the 4th day of March, 1911, filed against defendant the information above set out.

Upon this state of facts several of the contentions made by defendant for a reversal are predicated.

It is also urged by defendant that his application for a change of venue should have been...