State v. Berning

• Citation: 3 S.W. 588,91 Mo. 82
• Parties: The State v. Berning, Appellant
• Decision Date: 28 February 1887
• Court: United States State Supreme Court of Missouri

3 S.W. 588

91 Mo. 82

The State v. Berning, Appellant

Supreme Court of Missouri

February 28, 1887

Appeal from St. Louis Court of Appeals.

Affirmed.

C. C Simmons for appellant.

(1) Error was committed in permitting the cross-examination of defendant as to matters not testified to bye him in his examination in chief. It is not only the right, but the duty of the jury to carefully examine and weigh the evidence which the court permits to come before them, and it must be expected that they will do so; and, if there is error in the submitting of evidence, the presumption is that there will be error in the verdict. State v. Porter, 75 Mo. 171; State v. McGraw, 74 Mo. 573; State v Turner, 76 Mo. 337; State v. McLaughlin, 76 Mo. 320; State v. Douglass, 81 Mo. 231; State v. Patterson, 88 Mo. 88. (2) The verdict in this case is uncertain and insufficient. Under the instructions the jury, if they convicted the defendant, should have stated in their verdict whether or not he was guilty as charged in the indictment, or only of the lesser offence, as defined by section 1263, of the Revised Statutes. We contend that, under the new sections, 1654 and 1655, there should be an express finding as to the offence, as charged, before there can be any lawful conviction of a lesser grade or degree of the same offence. As the verdict now stands no one knows whether the defendant was convicted as charged in the indictment, or of the lesser offence, under the instruction given by the court, in accordance with section 1655. R. S., sec. 1927; State v. Mattressy, 47 Mo. 298.

B. G. Boone, Attorney General, for the state.

The record discloses no error justifying a reversal.

OPINION

Black, J.

The defendant was indicted and convicted of an assault with intent to kill Joseph Klatt. The indictment is based upon section 1262, Revised Statutes. Instructions were given on the theory that the assault was made with malice aforethought, and also on the theory of the subsequent section, that the assault was without malice aforethought.

1. The contention that the verdict is against the evidence, cannot be sustained. That defendant cut Klatt, who was a buggy washer at Mayer & Strattman's stables, with a knife, inflicting an ugly and dangerous wound, is not denied. The defence is, that Klatt attacked defendant with a horse-shoe. The right of the defendant to protect himself, by way of self-defence, was fairly submitted to the jury. It is quite evident the jury did not believe the defendant's version of the difficulty. There is abundant evidence to sustain the verdict.

2. It is next urged that the verdict is insufficient, in that it does not show of what grade of the offence defendant was convicted. The verdict is: "We, the jury, find the defendant guilty of assault with intent to kill, and assess the punishment at two years in the state penitentiary." It is to be observed the verdict does not simply say the defendant is guilty as charged, but it describes the offence of which he is found guilty. It is thus clear that the jury intended, by their verdict, and do show, that he was found guilty of an assault with intent to kill, but not with malice aforethought. Read in the light of the instructions, this is its evident meaning. But section 1927 Revised Statutes, has no application here. The verdict, by force of that section, must specify the degree of the offence, only where the statute in terms divides an offence into degrees, and the defendant is found guilty of a degree inferior to that charged. An assault with intent to kill, with malice...