State v. Barton
| Decision Date | 01 February 1898 |
| Citation | 44 S.W. 239,142 Mo. 450 |
| Parties | The State v. Barton, Appellant |
| Court | Missouri Supreme Court |
Appeal from Chariton Circuit Court. -- Hon. W. W. Rucker, Judge.
Affirmed.
Charles G. Singleton and L. N. Dempsey for appellant.
(1) The crime attempted to be charged was not established. The evidence in this record does not show the felonious intent of the defendant, nor does it disclose any facts or circumstances from which a felonious intent could be fairly drawn. (2) The word "feloniously" is used twice in the second instruction, and no light whatever thrown on the meaning of the word, nor any attempted explanation of its meaning. The word "felonious," if used in an instruction, should be defined. State v. Johnson, 111 Mo. 583; State v. Hayes, 105 Mo. 85; State v. Brown, 104 Mo. 371; Kelley's Crim. Law [2 Ed.] sec. 390. (3) The court should have instructed on lower grades of assault in this case under the evidence and law but confined the instructions to section 3489, Revised Statutes 1889. State v. Reynolds, 126 Mo. 521; State v. Buchler, 103 Mo. 208. (4) The indictment contradicts itself and is repugnant in this, that the first count charges the striking to have been done with a piece of iron, and the second count of said indictment charges the striking to have been done with a stone, and the third count charges the striking to have been done with a piece of wood and the fourth count of said indictment charges the striking to have been done with a large and heavy instrument to the grand jurors unknown. (5) Indictment does not charge the striking to have been done with a felonious intent, and is fatally defective. State v. Norman, 136 Mo. 3.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
(1) While it perhaps would have been better to have defined the term "feloniously," as used in the instruction, yet as it was not necessary to have used it, it is not reversible error to have failed to define it. In ordinary sense it is but descriptive of the grade of the offense and is only one of the means by which a felony is designated and distinguished from a misdemeanor. In this case defendant was in nowise prejudiced by the use of the word in the instructions, nor in the court's failure to define it. State v. Scott, 109 Mo. 232. We are not contending that it is unnecessary to instruct the jury as to what facts are required to constitute the act a felonious one, but when those facts and requirements are fully and properly presented to the jury in an intelligent manner, the instructions are complete. It will be found that all that is included, intended or needed in or by the word "feloniously" will be found fully explained, defined and contained in other instructions. State v. Johnson, 111 Mo. 578; State v. Snell, 78 Mo. 242. (2) Objection to the court's failure to instruct on all points authorized by the evidence in the case must be made at the time the instructions are being given to the jury by the court; and this point can not be raised by the defendant unless at the time the failure occurs to instruct the jury, the objection thereto be made and exceptions thereto saved as to such failure. State v. Nelson, 132 Mo. 196; State v. Paxton, 126 Mo. 515; State v. Frazier, 137 Mo. 342.
The defendant, a negro, appeals from a conviction of assault with intent to kill, his punishment being assessed at imprisonment in the penitentiary for the term of three years. The prosecution is based on section 3489, Revised Statutes 1889.
1. One count in the indictment reads as follows: "The grand jurors aforesaid, on their oath aforesaid, do charge and present that George Barton, on the 29th day of October, A. D. 1896, at and in the county of Chariton and State of Missouri, in and upon one Peter Miller, feloniously, on purpose and of his malice aforethought, did make an assault, and then and there, on purpose and of his malice aforethought, feloniously assault, beat and wound him, the said Peter Miller, with a large and heavy stone of the weight of five pounds, which was then and there a dangerous and deadly weapon, likely to produce death and great bodily harm, which said stone he, the said George Barton, then and there had and held in his right hand with intent then and there him, the said Peter Miller, on purpose and of his malice aforethought, feloniously to kill and murder, against the peace and dignity of the State." This indictment uses the statutory terms, and substantially follows approved forms. 1 Archbold, Crim. Proc., Pl. and Ev. [8 Ed.] 885; 3 Chitty, Crim. Law 828; Kelley's Crim. Law, sec. 576. The intent is plainly charged in the indictment and in this respect the instrument pointedly differs from the one in State v. Norman, 136 Mo. 1, 37 S.W. 827, where no such intent was alleged.
2. The State's version of the affair, and supported by evidence, was the following: Peter Miller, the prosecuting witness, lived on a farm four miles south of Dalton, Chariton county, Missouri. On the evening of the twenty-ninth day of October, 1896, he, in company with one John Redman, went to the town of Dalton for their mail. On reaching the town they were told that someone was ing to make a political speech on the train at the depot that evening. They concluded to remain in town until after the speaking. On walking toward the depot where a crowd had congregated, and a number of whom were hallooing for their favorite candidates Miller commenced hallooing for Bryan, and as he reached the depot platform the defendant...
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