State v. Dalton

• Decision Date: 31 March 1858
• Citation: 27 Mo. 13
• Parties: THE STATE, RESPONDENT, v. DALTON, APPELLANT.
• Court: Missouri Supreme Court

27 Mo. 13

THE STATE, RESPONDENT,

v.DALTON, APPELLANT.

Supreme Court of Missouri.

March Term, 1858.

1. J. D. and M. G. were jointly indicted for a felonious assault upon one C. H. The indictment charged that they in and upon one C. H. “feloniously and willfully did make an assault, with a certain knife of the length, etc., which they the said J. D. and M. G. then and there in their right hand had and held, with the intent then and there him, the said C. H., with the knife aforesaid, willfully and feloniously to kill, against,” etc. Held, that the indictment was sufficient to sustain a conviction thereon.

2. Evidence of character, to be admissible, must be restricted to that trait of character in issue.

Appeal from St. Louis Criminal Court.

John Dalton and Michael Gaughy were jointly indicted for a felonious assault, with intent to kill, upon one Charles Haufmeister. The second count of the indictment is as follows: “And the grand jurors aforesaid, upon their oaths aforesaid, do further present that John Dalton and Michael Gaughy, late of St. Louis, in St. Louis county, on the thirtieth day of September, in the year of our Lord one thousand eight hundred and fifty-seven, at St. Louis county aforesaid, with force and arms, in and upon one Charles Haufmeister, in the peace of the state then and there being, feloniously and willfully did make an assault, with a certain knife of the length of six inches, and of the breadth of two inches, which they, the said John Dalton and Michael Gaughy, then and there in their right hand had and held, with the intent then and there him, the said Charles Haufmeister, with the knife aforesaid, willfully and feloniously to kill, against the peace and dignity of the state.”

The jury found the defendant Dalton guilty as charged in the above writ.

Shreve, for appellant.

Mauro (circuit attorney), for the State.

I. The indictment is good. (Whart. C. L. 117; State v. Fley, 2 Brev. 338; State v. Green, 4 Strob, 128; Davis' Precedents, 151; Commonwealth v. Gallagher, 6 Metc, 565; R. C. 1855, p. 567.) If defective it is certainly cured by the statute of jeofails. (R. C. 1855, p. 1177.)

RICHARDSON, Judge, delivered the opinion of the court.

There is no practical distinction in crime between principals in the first and second degree; for if two persons are charged as principals--one as the immediate perpetrator of the injury, and the other as aiding and abetting--it is immaterial which of them is charged as having inflicted the wound or struck the blow, inasmuch as the law imputes the injury given by one as the act of the other. (Whart. Crim. Law, 117.) So that an indictment that A. gave the blow and B. was present and abetting, is sustained by evidence that B. gave the blow and A. was present and abetting. (1 East P. C. 350; 1 Salk. Rep. 335.) But the observation that no distinction is made in this respect in indictments gives no countenance to the practice of charging, against propriety and the truth, that both held the same knife, club or pistol in the right hand; and the cases referred to in the note of Wharton do not sanction such a precedent. The indictment in Green's case, 4 Strob. 128, was like the indictment in State v. Fley, 2 Brev. 338, which charged that Jenkins and Fley, with malice aforethought, etc., made an assault on David Minton; that Jenkins with a gun shot Minton, so that he died, etc.; that Fley was then and there present maliciously aiding, etc., the murder aforesaid to...