State v. Davis

• Decision Date: 31 January 1860
• Citation: 29 Mo. 391
• Parties: THE STATE, Respondent, v. DAVIS, Appellant.
• Court: Missouri Supreme Court

29 Mo. 391

THE STATE, Respondent,

v.DAVIS, Appellant.

Supreme Court of Missouri.

January Term, 1860.

1. Where an indictment contains two counts, one founded on the 35th, the other upon the 39th, section of the second article of the act concerning crimes and punishments, (R. C. 1855, p. 565, 567,) and both counts relate to the same transaction, the defendant is not entitled to demand that the prosecution shall select the count upon which the defendant shall be tried.

2. Every felonious act must be charged to have been feloniously done; this requirement will be satisfied, in an indictment founded upon the 39th section of the second article of the act concerning crimes and punishments (R. C. 1855, p. 567,) by an averment that the assault was made feloniously and that the striking, cutting and thrusting were done feloniously, although the maiming, wounding, disfiguring or doing great bodily harm may not be directly charged to have been done feloniously.

3. Principals in the first and second degrees are in law equally guilty; there is no difference in the grade of their offences. The one charged as principal in the first degree, if properly indicted himself, can not take advantage of defective averments, if any, against those indicted as principals in the second degree.

4. It is not good cause of challenge to a juror in a criminal case that he has formed or delivered an opinion on the issue or any material fact to be tried, if it appear that such opinion is founded only on rumor and not such as to prejudice or bias his mind. (R. C. 1855, p. 1191, § 14.)

5. Testimony cannot be introduced to show that a witness had made statements contradictory of those made upon the witness stand, unless a foundation be first laid for such testimony by calling the witness' attention to the matter about which he is to be contradicted and thus giving him an opportunity to explain.

Appeal from Osage Circuit Court.

It is sufficient to state, in addition to the facts stated in the opinion of the court, that the court, at the instance of the State, gave the following instructions bearing upon the second count of the indictment: “2. If the jury believe from the evidence that the defendant within three years next before the finding of this indictment, and in Osage county, wilfully and feloniously made an assault with a knife, being a deadly weapon, likely to produce death or great bodily harm, and inflicted a wound upon the face of said Berry, or upon the side, or upon any other part of the body of the said Berry, whereby the said Berry was wounded, disfigured, or received great bodily harm, then the jury must find him guilty under the second count of the indictment, and in that case must assess his punishment by imprisonment in the penitentiary, &c. 5. Although the jury should believe from the evidence that Berry struck defendant with a knife or snapped a pistol at him, yet if the defendant was pursuing him to assault him or to inflict on him great personal injury, and there was reasonable cause for Berry to apprehend immediate danger from such assault or injury, then Berry had a right to strike or shoot, if necessary, in his self-defence; and if, under such circumstances, defendant assaulted Berry as described in the first or second instruction, he was not justified in so doing. 6. Mere words of insult or banter, even if Berry had first used them, constitute in law no provocation or excuse to justify an assault or wounding.”

The court, at the instance of defendant, gave the following instruction bearing upon the second count: “1. Although the jury may believe from the evidence in this cause that the defendant Thomas Davis inflicted the wounds upon the person of Robert Berry, yet if they further believe that they [were] inflicted in the lawful defence of himself; or if Davis had reasonable cause to apprehend a design on the part of Berry to do him (Davis) some great personal injury, and that Davis had reasonable cause to apprehend immediate danger of such design being accomplished, they will find the defendant not guilty.”

The court refused many instructions asked by the defendant. It is unnecessary to set them forth.

Ewing & Parsons, for appellant.

I. The court should have quashed the second count of the indictment. It does not charge the maiming, wounding, disfiguring, &c., to have been done feloniously. (See State v. Feaster, 25 Mo. 325; State v. Leonard 22 Mo. 449.) It also first charges that the codefendants of Davis were principals in the first degree, and afterwards charges said codefendants as principals in the second degree.

II. The court should have declared the jurors Shackelford, Miller and others incompetent to sit as jurors. They said that their opinion in regard to the issues were so fixed in their minds as to require evidence to remove it.

III. The court should have permitted the defendant to contradict the testimony of Mrs. Rosson.

IV. The court erred in giving the second instruction. The felonious assault was not the gist of the action; it was the felonious wounding. The instruction takes from the jury all consideration of provocation or self-defence. There was evidence tending to show that the wounding, disfiguring, & c., was done in self-defence. The fifth instruction was erroneous. The court should have given the instructions asked by defendant.

Knott, (attorney general,) for the State.

I. The second count of the indictment is good. Principals in the first and second degrees are equally guilty. The offence may be charged as the joint act of all, and the part performed by each then set forth, or the part that each performed may be first set out and then the conclusion drawn that all are guilty. The word “feloniously” placed before “strike, cut and thrust” relates to and is descriptive of the wounding, disfiguring, &c., mentioned as the consequence of the striking, cutting, &c., and need not be repeated. (2 Hale P. C. 185; Bac. Abr. tit. Indict. 556; State v. McGrath, 19 Mo. 678.) In the case of the State v. Feaster, the act done with the weapon was not charged to have been done feloniously. If the defendant feloniously struck, and the wounding was the immediate consequence of the stroke, it would be absurd to say that the wounding was not feloniously done, or that it was not so charged.

II. The court properly refused to compel the circuit attorney to elect upon which count of the indictment he would proceed. (State v. Jackson, 11 Mo. 544; State v. Leonard, 22 Mo. 449; State v. Porter, 26 Mo. 201.)

III. The jurors Shackelford and others were competent. There is nothing in the fact that “it would require evidence to remove the opinions they had entertained.” (See R. C. 1855, p. 1191, § 14; State v. Baldwin, 12 Mo. 224.)

IV. The court properly refused to permit the witness Davis to detail a conversation he had with Mrs. Rosson. No foundation was laid for contradicting the witness with a view to discredit her. (Greenl. Ev. § 462; Roscoe's Cr. Ev. 183.)

V. The instructions given to the jury were correct. There was no error in refusing the instructions asked by defendant.

SCOTT, Judge, delivered the opinion of the court.

The defendant Davis was indicted, with three others, under the 35th and 39th sections of the second article of the act concerning crimes and their punishments. There were two counts in the indictment; the one on the 35th, and the other on the 39th of said sections. The first charges a wilful...