State v. Bishop

• Decision Date: 13 December 1910
• Citation: 133 S.W. 33,231 Mo. 411
• Parties: STATE v. BISHOP.
• Court: Missouri Supreme Court

133 S.W. 33

231 Mo. 411

STATE v. BISHOP.

Supreme Court of Missouri, Division No. 2.

December 13, 1910.

1. CRIMINAL LAW (§ 881)—TRIAL—VERDICT— SUFFICIENCY.

A general verdict of guilty as charged in the information, when returned in response to an information charging one offense, is sufficient.

2. CRIMINAL LAW (§ 882)—TRIAL—SPECIAL VERDICT—SUFFICIENCY.

A special verdict finding the facts constituting the offense may be returned, but it must contain all the essential elements of the offense.

3. CRIMINAL LAW (§ 893)—TRIAL—VERDICT —SURPLUSAGE.

In a prosecution for felonious assault, the verdict was: "We, the jury, find the defendant guilty of felonious assault with malice, as charged in the information, and assess his punishment," etc. This was a general verdict in spite of the surplus words "felonious assault with malice."

4. CRIMINAL LAW (§ 1115)—APPEAL—RECORD —PRELIMINARY TRIAL.

In a criminal prosecution, the record need not affirmatively show that the defendant was accorded a preliminary examination before the filing of the information, so that if defendant wishes to avail himself on appeal, of the right of preliminary examination, the record must show that the question was raised in the court below and exceptions saved to the adverse ruling.

5. CRIMINAL LAW (§ 603)—TRIAL—CONTINUANCE.

Where one prosecuted for felonious assault applied for a continuance for absence of witnesses, the testimony set forth in the application, being clearly hearsay, and not admissible, the application was properly refused.

6. CRIMINAL LAW (§§ 1052, 1090)—APPEAL— RECORD—BILL OF EXCEPTIONS—NECESSITY.

One wishing to review an action of the court in overruling an application for a continuance must except and have his exceptions preserved in the bill of exceptions.

Appeal from Circuit Court, Vernon County; B. G. Thurman, Judge.

Walter Bishop was convicted of felonious assault, and appeals. Affirmed.

E. W. Major, Atty. Gen., and Jno. M. Dawson, Asst. Atty. Gen., for the State.

KENNISH, J.

Defendant was convicted in the circuit court of Vernon county of a felonious assault on purpose and of malice aforethought made upon G. C. Webb, at said county on the 10th day of November, 1908, by shooting the said Webb with a pistol. His punishment was assessed at imprisonment in the penitentiary for a term of three years. After the proper motions were filed and overruled, judgment was pronounced and the defendant appealed to this court.

Thomas McGuire was jointly charged with defendant, but upon the application of McGuire a severance was granted and a nolle prosequi was entered as to him before the commencement of the trial, in order that he might testify as a witness for the state.

The evidence for the state tended to prove that defendant and witness McGuire on the night of the 10th day of November, 1908, were riding without permission on the platform of the blind baggage car on a passenger train of the Kansas City & Southern Railway Company, running from Mena, Ark., to Kansas City, Mo. They were discovered by the porter of the train at the town of Richards, in Vernon county, this state, and were ordered to get off, which they did, but went forward and got upon the car next to the tender. At the station of Stotesbury, in the same county, while the train was stopped the porter and G. C. Webb, the latter a private detective of the railway company, went forward with a lantern and demanded of defendant and McGuire that they get off the train. McGuire complied promptly, and while Webb was giving attention to him the defendant, unobserved, jumped down and presented a revolver at Webb's breast and ordered him to throw up his hands. Webb obeyed and defendant backed him upon the platform, keeping the revolver close to Webb's body. The latter finally struck the defendant's arm, intending to knock the revolver out of his hand. The defendant immediately began shooting at Webb and the latter returned the fire. Webb was shot in the leg. The defendant and McGuire made their escape and were not apprehended until about six months thereafter. The defendant was a witness in his own behalf and testified that he, instead of McGuire, got off the train first, that McGuire did the shooting, and that he took no part whatever in the assault on Webb...