State v. Chumley

• Decision Date: 31 October 1877
• Parties: THE STATE v. CHUMLEY et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

67 Mo. 41

THE STATE

v.CHUMLEY et al., Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1877.

Error to Gasconade Circuit Court.--HON. A. J. SEAY, Judge.

Lay & Belch for plaintiffs in error.

1. The instrument, with which the assault was made, or the manner of making the assault, should be set out in the indictment. Beasley v. State, 18 Ala. 535; State v. Johnson, 11 Texas 22; People v. Davis, 4 Parker Cr. Ct. 61; 1 East P. C. 419.

2. The verdict was changed in matter of fact material; this cannot be done. State v. McBride, 19 Mo. 239; Whitehead v. State, 10 Ohio St. 449; Malton v. People, 15 Ill. 536; 6 Ala. 483; Prince v. State, 35 Ala. 367; Commonwealth v. Robey, 12 Pick. 496; State v. Thompson, 30 Mo. 470; State v. Brown, 60 Mo. 141.

3. The proof of the actual commission of the felonious maiming and disfiguring, charged in the indictment, renders the verdict upon this indictment, charging the felonious assault with intent a nullity under our statute. 1 Wag. Stat., p. 511, § 2.

J. L. Smith, Attorney-General, for the State.

Duplicity in an indictment is cured by a verdict of guilty on one of the offenses charged, and not guilty on the other, and moreover such objection can only be taken by demurrer or motion to quash, but not at a later stage of the proceedings. 1 Whart. Crim. Law, Sec. 395; Commonwealth v. Tuck, 20 Pick. 356; Hilderbrand v. State, 5 Mo. 548. Besides, the alleged defect would be cured by our statute of jeofails, which provides that “no indictment shall be held invalid, for any surplusage or repugnant allegation when there is sufficient matter alleged to indicate the crime and person charged.” 2 Wag. Stat., p. 1090, § 27. No objection was made to the action of the court in permitting the prosecuting attorney to change the verdicts as set out.

HENRY, J.

At a special term of the Gasconade circuit court, held in July, A. D. 1875, defendants were jointly indicted and tried for a felonious assault upon one Joseph Coulter. The indictment contained two counts, one under the 29th and the other under the 32nd section, Wag. Stat., p. 449. The second count of the indictment alleged that defendants, on the 23rd day of June, 1875, at, &c., upon the body of one Joseph Coulter, unlawfully, willfully and feloniously did make an assault, with intent him, the said Coulter, then and there feloniously, willfully and unlawfully to maim, disfigure and kill. No motion to quash was filed, but on a motion in arrest, the objections now urged were made to the indictment. First, that the indictment should have set out the manner in which the assault was made, and the weapon used.

1. ASSAULT TO KILL: statutory offense: requisites of indictment

The offense charged was a statutory offense, and it is generally sufficient in such cases to describe the offense in the language of the statute. An indictment, under the 29th section must state the instrument or means employed, but under section 32 this is not necessary. This proposition we think sustained by Beasely v. The State, 18 Ala. 535, cited by appellants' counsel. The court there said: The rule is, that when a statute creates a new offense, and describes its ingredients, it is sufficient in an indictment to describe the offense in the language of the act. That was an indictment for an assault with intent to commit murder, and the court held that it was not a statutory offense, and that it must be described as at common law.

2. ASSAULT TO MAIM AND KILL: mayhem: rules as to convictions.

Here the evidence showed that one of the defendants, with a knife, inflicted a severe wound upon Coulter's arm, and it is contended that, therefore, a verdict of guilty of an assault with intent to kill should not be permitted to stand, because there was an actual commission of the offense of mayhem, and that, when one is indicted for an assault with intent to commit a crime, and the evidence shows the crime actually committed, he cannot be convicted of an assault with the intent to commit that crime. Conceding that to be the law, the defendants were not found guilty of an intent to maim, but, on the contrary, the authorities cited by appellants' counsel hold that the verdict of guilty of an assault with intent to kill amounts to an acquittal of an assault with intent to maim. When several intents are charged, as in this indictment, proof of one is sufficient to warrant a conviction; and while an intent to maim was charged, no such intent was proved, or found by the jury, and the fact that Coulter was maimed, no more entitled defendant to an acquittal, than if an intent to maim had not been charged in the indictment, but only an intent to kill. If, in an assault with intent to kill the person assaulted be...