State v. Clayton

• Decision Date: 02 June 1890
• Citation: 13 S.W. 819,100 Mo. 516
• Parties: STATE v. CLAYTON.
• Court: Missouri Supreme Court

13 S.W. 819

100 Mo. 516

STATE v. CLAYTON.

Supreme Court of Missouri.

June 2, 1890.

ASSAULT WITH INTENT TO KILL — INDICTMENT — EVIDENCE.

1. An assault with intent to kill, which is punishable, under 1 Rev. St. Mo. 1879, § 1262, by imprisonment in the penitentiary for a term not exceeding 10 years, is a felony, within the definition of that term by section 1676, as an offense for which the offender "is liable" to be imprisoned in the penitentiary; and an indictment which fails to allege that such assault was committed with a felonious intent is bad.

2. An indictment for an assault need only charge the assault in general terms, without specifying the manner in which it was committed. Overruling State v. Jordan, 19 Mo. 212, and State v. Greenhalgh, 24 Mo. 373, and following State v. Chandler, Id. 371, and State v. Chumley, 67 Mo. 41.

3. On a trial for assault with intent to kill, evidence is inadmissible as to the killing of a third person by the prosecuting witness a few minutes before defendant made his assault, at which encounter defendant was not present, and with which he was not shown to have been connected; and where, on the admission of such evidence, the court promises to withdraw it if defendant's connection is not shown, it is error to permit such evidence to go to the jury with the court's approval impressed on it.

4. Where there is nothing to show that the prosecuting witness was acting as a peace-officer at the time of the assault, it is error to admit evidence that he then held the office of town marshal. BARCLAY, J., dissenting.

Appeal from circuit court, Hickory county; W. I. WALLACE, Judge.

Indictment of William C. Clayton for an assault with intent to kill, committed on the person of one Thomas G. Allen. Evidence on the part of the state was admitted, showing that, a few minutes before the assault, Allen had shot and killed one Charley Clayton. J. H. Kinney, a witness for the state, testified: "The difficulty between Tom Allen and W. C. Clayton occurred at Holmes' store. I was at the store when Bill Clayton shot at Tom Allen. When Clayton stepped in the door, and Tom Allen pointed his pistol, I was in range of Allen's pistol, and stepped outside. Clayton fired, and I can't say whether Tom Allen fired or not. Tom Allen was in the back part of the store, standing in the door. Clayton was near the front door, partly behind a stack of goods, and shot from behind a box of goods. Clayton, when he fired, was about 60 to 65 feet from Allen. Tom Allen had pistol in his right hand, pointing towards Clayton. Clayton was rather behind stack of goods, pointing his pistol around. Next I saw of Allen, he was crossing the street east and west. Clayton came out at front door. One shot was fired, and, I thought, two. Allen was standing still with pistol when Clayton fired. When Clayton came in, Allen drew his pistol down on Clayton. Tom Allen was standing in back door when Bill Clayton came in at front door, and Allen drew his pistol on Clayton a little before Clayton pointed his at Allen. Bill then presented his pistol. Clayton was eight or ten feet from the front door when he fired. Clayton did not say anything when he came in, that I heard. Don't remember of his saying anything at any time." Defendant was found guilty, and now appeals. 1 Rev. St. Mo. 1879, § 1262, provides: "Every person who shall, on purpose and of malice aforethought, shoot at or stab another, * * * with intent to kill such person, * * * shall be punished by imprisonment in the penitentiary not exceeding 10 years." Section 1676 is as follows: "The term `felony' * * * shall be construed to mean any offense for which the offender, on conviction, shall be liable by law to be punished with death or imprisonment in the penitentiary."

Amos S. Smith, for appellant. John M. Wood, Atty. Gen., for the State.

SHERWOOD, J.

The charging part of the indictment in this cause is the following: "that Wm. C. Clayton, late of the county aforesaid, on or about the 17th day of June, 1886, at the county of Hickory, state aforesaid, did upon the body of one Thos. G. Allen, then and there being, feloniously, on purpose, and willfully, with a deadly weapon, to-wit, a revolving pistol loaded with gunpowder and leaden balls, which he, the said Wm. C. Clayton, then and there had and held, did then and there make an assault with intent him, the said Thos. G. Allen, then and there to kill, against the peace and dignity of the state."

1. The indictment herein attempts to charge a felony; that is, a crime which is liable to be punished by imprisonment in the penitentiary, not one which must be thus punished. Rev. St. 1879, § 1676. This has been the law in this state over 50 years. St. 1835, p. 216, § 36; Rev. St. 1845, p. 414, § 36; Rev. St. 1855, p. 645, § 38; Gen. St. 1865, p. 828, § 33; Johnston v. State, 7 Mo. 183; Ingram v. State, Id. 293; State v. Murdock, 9 Mo. 739; State v. Green, 66 Mo. 632; State v. Reeves, 97 Mo. 668, 10 S. W. Rep. 841. Being thus a felony, it was indispensable that the indictment should charge that the act, to-wit, the assault, was done with a felonious intent, because without a felonious intent there can be no felony. Curtis v. People, Breese, 256; State v. Swann, 65 N. C. 330; 1 Archb. Crim. Pl. 885, 929; 3 Chit. Crim. Law, 788, 828; 2 Bish. Crim. Proc. §§ 79, 651, 653; State v. Thompson, 30 Mo. 470; Beasley v. State, 18 Ala. 535. The making of an assault like the one under discussion is not a new offense created by statute, — was an offense at common law, but was only a misdemeanor. 1 East, P. C. 411. The grade of the offense, however, having been raised to a felony, the common-law rule as to charging felonies must apply, and the act charged like any other felony originating at common law. On this ground, it must be held that the indictment is insufficient, and that the objection to its sufficiency was well taken.

2. It seems that most of the authorities favor the view that assaults may be charged in general terms; that is, without specifying the means by which the assault was made. 2 Bish. Crim. Proc. §§ 77, 656. In this state, however, the point has been ruled both ways. Thus, in State v. Jordan, 19 Mo. 212, and State v. Greenhalgh, 24 Mo. 373, it was held essential to state the manner in which the assault was made. In State v. Chumley, 67 Mo. 41, without adverting to former opinions, it was ruled that it was unnecessary to allege the manner of the assault; and in State v. Chandler, 24 Mo. 371, it was ruled that the manner of the assault charged need not be alleged. It is, therefore, an open question in this state; and we decide to follow the general current of...