State v. Bray
| Decision Date | 31 May 1822 |
| Citation | 1 Mo. 180 |
| Parties | THE STATE v. BRAY. |
| Court | Missouri Supreme Court |
The defendant having been indicted at the Circuit Court of Franklin county, for an assault on one Michael Jones, and having, on a plea of not guilty, been, by verdict of a jury, found guilty thereof, a motion was made by his counsel, in arrest of judgment; and the only reason alleged, is, that the indictment does not state that the assault and battery was done unlawfully, which motion was sustained, and the judgment arrested; to reverse which, this writ of error was brought.
The indictment states, that the defendant, on the day, year and place therein mentioned, with force and arms, in and upon the body of one Michael Jones, in the peace of God and of the State, then and there being, an assault did make, and him, the said Michael Jones, did, then and there, beat, wound and ill-treat, &c., contrary to the form of the statute in that case made and provided, and against the peace and dignity of the State.
The expressions of the acts of 1807, are, that if any person shall unlawfully assault, or threaten another, in any manner, or shall strike or wound another, he shall, upon conviction thereof, be fined, &c. and as the indictment in this case does not state that the defendant did unlawfully make the assault, it is contended that the indictment is vicious, and the defendant could not have been convicted on it. In support of this position (2 Haw. p. 347) is cited where it is laid down, that where a statute uses the word unlawfully, in the description of an offense, an indictment grounded on it must use the word unlawfully, or some other, tantamount.
In our opinion, however, the act of the Legislature cannot be considered as defining or describing what should constitute an assault. It limits and prescribes the punishment that should be inflicted on the person committing the offense, but leaves the construction of what shall be considered to amount to an assault, as at common law.
The authority referred to is express, that the word unlawfully is not used in any one of Coke's or Rastel's precedents of indictments, nor could the author, Seg't. Hawkins, find any clear or express authority that it is, in any case, necessary in an indictment at common law; but, on the contrary, he found it expressly adjudged, that it is not necessary in an indictment for a riot, because the act itself, contained in the indictment, so plainly appears to be unlawful. Although an assault is not an offense...
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...an indictment or information is equally good when brought pursuant to the statute which is merely declaratory of the common law. State v. Bray, 1 Mo. 180 (1822); People v. Cantwell, 253 Ill. 57, 97 N.E. 287 (1911). Cf. State v. Skolfield, 86 Me. 149, 29 A. 922 The mere use of the term "assa......
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