State v. Feaster

• Decision Date: 31 July 1857
• Parties: THE STATE, Appellant, v. FEASTER, Respondent.
• Court: Missouri Supreme Court

25 Mo. 324

THE STATE, Appellant,

v.FEASTER, Respondent.

Supreme Court of Missouri.

July Term, 1857.

1. An indictment founded on section 38, of article 2, of the act concerning crimes and punishments (R. C. 1845, p. 351), charged that the defendant did “feloniously make an assault on the body of one C. H. with a large stick, of the length of four feet and the thickness of four inches, which stick he, the said E. F., then and there held in both his hands, and with the stick aforesaid, did then and there inflict on the body of the said C. H. great bodily harm, under such circumstances which would have constituted manslaughter if death had ensued, contrary,” etc.; held, insufficient in that it did not charge the inflicting of the great bodily harm feloniously.

Appeal from St. Clair Circuit Court.

Ewing (attorney-general), for the State.

The indictment is sufficient. The facts and circumstances constituting the offense are averred in the indictment, and the expression, “under circumstances which would have constituted manslaughter if death had ensued,” may be rejected as surplusage. (R. C. 1845, sec. 38, p. 351; Jennings v. The State, 9 Mo. 852.) It was not necessary to aver that the weapon used was a dangerous or a deadly one. This sufficiently appears from the description given in the indictment, and no more was required. (Jennings v. The State, 9 Mo. 852; 11 Mo. 579; The State v. Magrath, 19 Mo. 678.) If the word “feloniously” appear in any part of the indictment, it is sufficient. (1 Chitty C. L. 242.)

F. P. Wright, for respondent.

I. The decision of the court below is correct. The indictment is clearly bad. The offense is not the assault, but the bodily harm inflicted. Bodily harm is the accusation. It is not alleged that this was done feloniously. This omission is fatal. An indictment for felony must always allege the fact to be done feloniously. (2 Hale, 184; 2 Hawkins, 320, §55; 9 Mo. 730; Wharton, 196; 1 Breese, Ill., 199.) The term felony originally denoted the penal consequences of the crime, but by long usage it is now employed to signify the crime itself. (4 Black. 69; 1 Chitty C. L. 238.) Unless the bodily harm was inflicted feloniously, it was not indictable. The term “felonious” is the only one appropriated by the law to express the nature and character of this accusation. It being omitted in the indictment, it presents a case punishable only before a justice of the peace.

II. The description of the offense is not sufficient. It amounts to this and no more: “Elbert Feaster made a felonious assault on Carrol Harper with a large stick, and with the stick did inflict on the body of Carrol Harper great bodily harm.” All the facts necessary to constitute the offense must be charged by express averment, or the judgment will be arrested. (Kit v. The State, 11 Humph. 167.)

RYLAND, Judge, delivered the opinion of the court.

The defendant, Feaster, was indicted at the March term of the Circuit Court for Hickory county, in the year 1855. At the September term he appeared to the indictment, and filed his petition for a change of venue, which was granted, and the venue changed to the Circuit Court of St. Clair county. At the October term, 1855, of the Circuit Court for St. Clair county, the parties appeared, and the case was continued until the next term. At the May term, 1856, the defendant filed his demurrer to the indictment, which was overruled. The case was then continued from term to term until the March term, 1857, when the defendant pleaded not guilty to the indictment, and a trial was had. The defendant was convicted by the jury and fined. He afterwards moved in...