State v. Dildine

• Decision Date: 10 June 1932
• Docket Number: No. 31782.,31782.
• Citation: 51 S.W.2d 1
• Parties: THE STATE v. T.T. DILDINE, Appellant.
• Court: Missouri Supreme Court

51 S.W.2d 1

THE STATE v. T.T. DILDINE, Appellant.

No. 31782.

Supreme Court of Missouri, Division 2.

June 10, 1932.

Appeal from Pemiscot Circuit Court. — Hon. John E. Duncan, Judge.

AFFIRMED.

Van Mayes, Sam J. Corbett and Sharon J. Pate for appellant.

(1) The information is insufficient. It does not apprise the accused of the nature and cause of the charge against him with such particularity as to enable him to know exactly what he has to meet. It charges him with committing an assault with a pistol without any specification of acts or descriptive circumstances showing how the assault was committed, whether by shooting or pointing the pistol at the prosecuting witness, or by striking, or striking at him with it, and does not give the size and weight, or length, of said pistol, nor state that it was loaded with gunpowder and leaden balls. Edwards v. State, 27 Ark. 497; Haney v. State, 34 Ark. 263; Peo. v. Aro, 6 Cal. 207; 65 Am. D. 503; 31 C.J. sec. 239, p. 694. When an assault may be committed in different ways with the same weapon, such as a pistol, the manner of committing the assault should be alleged, or it should sufficiently appear from the allegations whether the State intends to prove an assault with the pistol by shooting or pointing same at the prosecuting witness, or by striking, or striking at him with it. 31 C.J. sec. 180, p. 660, sec. 239, p. 694, secs. 324-325, pp. 763-764. The defendant is presumed to be innocent and by reason of this legal presumption is presumed to have no independent knowledge of the facts constituting the offense the State intends to charge him with in the information. 31 C.J. sec. 170, p. 650. And where the information is not sufficient to apprise the defendant of the nature and cause of the charge against him, this defect is not cured by the verdict. Sec. 3563, R.S. 1929. (2) The information does not charge an assault by shooting, but merely with a deadly weapon. The instructions of the court submitted to the jury a case of shooting and not an assault with a deadly weapon. In case of an assault by shooting, it is not necessary to allege the pistol is a deadly weapon, but where the assault is charged to have been committed with a pistol, to-wit: a deadly weapon, without further charging a shooting, a case of assault with a deadly weapon should have been submitted to the jury. Therefore, the defendant was charged with one offense and convicted of another if the information is sufficient. Sec. 4014, R.S. 1929; State v. Harris, 209 Mo. 423; State v. Williams, 191 Mo. 205. When a pistol is used as a bludgeon it is not a deadly weapon per se. Authorities on this point are collated in the following case: 8 A.L.R. 1316-1319. And when pointed at another, it is not a deadly weapon unless loaded. State v. Sears, 86 Mo. 169; State v. Lewellyn, 93 Mo. App. 469; State v. Dooley, 121 Mo. 591.

Stratton Shartel, Attorney-General, and Silas E. Garner, Special Assistant Attorney-General, for respondent.

(1) The first assignment of error in defendant's motion for a new trial is an attack on the sufficiency of the information, averring that it is violative of Section 22 of Article II of the Constitution of the State of Missouri, in that it does not fully inform him of the nature and cause of the accusation. We think the complaint more fanciful than real. State v. French, 300 S.W. 793; State v. Griffith, 279 S.W. 135; State v. Clayton, 13 S.W. 819, 100 Mo. 516; State v. Baird, 195 S.W. 1010; State v. Miller, 300 S.W. 765. The information in this case charges the defendant with violating a statute, to-wit: Sec. 4014, R.S. 1929.

WHITE, P.J.

The appeal is from a judgment upon defendant's conviction, March 23, 1931, of felonious assault.

The bill of exceptions filed in the case contains the motion for new trial and the instructions given by the court, but no evidence. There is a general statement that the State introduced evidence which proved that T.T. Dildine, August 16, 1930, in Pemiscot County committed a felonious assault upon Cale Bradford with a deadly weapon, a pistol loaded with gun powder and leaden balls by shooting said Bradford with intent to kill. The only errors assigned in the motion preserved for our consideration relate to the sufficiency of the information, an instruction and the verdict of the jury.

I. The information is as follows:

"Now comes Orvel E. Hooker, Prosecuting Attorney, within and for the county of Pemiscot, who in this behalf prosecutes for and in the name of the State of Missouri, and upon his official oath informs the court that on or about the 16th day of August, 1930, at and in the county of Pemiscot and State of Missouri aforesaid, one T.T. Dildine, then and there being, did then and there willfully, unlawfully and feloniously in and upon one Cale Bradford, then and there being, with a certain dangerous and deadly weapon, to-wit, a pistol which he, the said T.T. Dildine, in his hands then and there had and held, did make an assault with the felonious intent then and there, him, the said Cale Bradford, to kill or to do him the said Cale Bradford some great personal injury or bodily harm; contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State of Missouri.

                         "Orvel E. Hooker
                            "Prosecuting Attorney
                            "Pemiscot County, Mo."
                

[1] Appellant asserts that the information is uncertain in violation of Section 22, Article II, of the Constitution in that it does not state the nature and cause of the accusation. The exact point is that the information does not with sufficient particularity describe how the offense was committed. It avers that the assault was made with a dangerous and deadly weapon, to-wit, a pistol, which might be used in shooting or it might be used as a bludgeon, thus leaving uncertain the manner of the assault. It is urged that the pistol for the purpose of shooting is not a deadly weapon unless it is loaded with powder and ball....