State v. Duvenick

• Court: Missouri Supreme Court
• Writing for the Court: Ferriss
• Citation: State v. Duvenick, 237 Mo. 185, 140 S.W. 897 (Mo. 1911)
• Decision Date: 14 November 1911
• Parties: STATE v. DUVENICK.

140 S.W. 897

237 Mo. 185

STATE v. DUVENICK.

Supreme Court of Missouri, Division No. 2.

November 14, 1911.

1. WEAPONS (§ 17) — CRIMINAL PROSECUTION — EVIDENCE.

In a prosecution for exhibiting a deadly weapon in a rude and threatening manner, evidence held to support a conviction.

2. INDICTMENT AND INFORMATION (§ 132) — JOINDER OF COUNTS — ELECTION.

It is not error to refuse an election, where the several counts of an information refer to the same transaction.

3. INDICTMENT AND INFORMATION (§ 132) — ELECTION.

In a prosecution for exhibiting a deadly weapon in a rude and threatening manner, where the state at the close of the evidence elected to proceed upon the second count only, and the court charged the jury that on the second count "the court instructs you as follows," a specific instruction that the first count had been dismissed was unnecessary.

4. CRIMINAL LAW (§ 1038) — APPEAL — INSTRUCTIONS — REQUEST.

In a criminal prosecution, where the state dismissed as to the first count of the information after the close of the evidence, the failure of the court to instruct that the first count had been dismissed cannot be taken advantage of on appeal; defendant having neither requested such instruction, nor excepted to the failure of the court to give it.

5. WEAPONS (§ 17) — CRIMINAL PROSECUTION — INSTRUCTIONS — APPLICABILITY TO EVIDENCE.

In a prosecution for exhibiting a deadly weapon in a rude and threatening manner, where the evidence tended to show that, when the prosecuting witness was leaving defendant's premises, defendant pointed a loaded revolver at him, and made him walk into the house, and there demanded an explanation of his conduct in certain matters, an instruction, properly defining the offense, was not subject to criticism for failing to state what circumstances would justify the exhibition of a deadly weapon.

6. WEAPONS (§ 3) — CRIMINAL PROSECUTION — STATUTES.

Acts 1909, p. 452, making the exhibition of a deadly weapon in a rude and threatening manner an offense, went into effect 90 days after the adjournment of the Legislature, or August 16, 1909, and hence applied to such offenses thereafter.

7. INDICTMENT AND INFORMATION (§ 79) — CONCLUSIONS.

The omission of the letter "t" from the word "against," which is a part of the phrase "against the peace and dignity of the state," with which informations are required to conclude, being obviously a clerical error which would not change the sound of the word, does not invalidate the information.

Appeal from Circuit Court, Moniteau County; Em. H. Martin, Judge.

Henry Duvenick was convicted of feloniously and unlawfully exhibiting a deadly weapon in a rude and threatening manner, and he appeals. Affirmed.

At the January term, 1910, of the circuit court of Moniteau county, the prosecuting attorney, by leave of court, filed his third amended information in two counts, the first of which charged the defendant with felonious assault with a deadly weapon, and the second with feloniously and unlawfully exhibiting a deadly weapon in a rude, angry, and threatening manner, in the presence of one B. F. Brockhausen; both counts being based upon the same transaction. Before proceeding to trial, the defendant, by counsel, moved the court to require the state to elect upon which count in the information it would proceed to trial, which motion was overruled; the defendant duly excepting. At the close of the evidence, the state dismissed as to the first count, and elected to stand upon the second count. The trial resulted in defendant's conviction; his punishment being assessed by the jury at a fine of $700. Judgment was pronounced in conformity to the verdict, from which judgment defendant appeals.

The evidence for the state was, in substance, as follows: On the evening of October 25, 1909, B. F. Brockhausen, the prosecuting witness, was leaving the defendant's premises at California, in said county, on his way home, when he heard some one halloa to him to stop and throw up his hands. He did not at first think that he was the party so addressed, and did not stop until he heard the call two or three times. He then looked around, and saw the defendant within 20 feet of him, with a loaded revolver pointing at him. Defendant told Brockhausen to walk into his (defendant's) house, and Brockhausen did so. When inside, he was commanded by the defendant to sit down, the defendant pointing his revolver at him at the same time. Being asked by Brockhausen what he wanted with him, defendant said, "You know what you have been doing," but made no further explanation. Brockhausen testified that he "tried to argue the matter" with defendant, telling him that he had done him no harm, and could not understand why he so treated him; that Mrs Brockhausen came in from her home near by, and asked her husband what he was doing there, and received the answer that he was not there because he wanted to be, but because defendant ordered him to come to his house at the point of a revolver; that she then asked defendant why he should treat her husband in such a way, and that defendant answered: "I saw him leaving my house; that it why I want him here;" that after some further talk defendant said he didn't need a revolver for Brockhausen, and laid it upon a dresser, but immediately took it down again, and then ordered both of them from the house. Mrs. Brockhausen's testimony substantially corroborated that of her husband, but she testified that the defendant did not...