State v. Foster

• Decision Date: 13 March 1920
• Docket Number: No. 21883.,21883.
• Citation: 220 S.W. 958,281 Mo. 618
• Parties: STATE v. FOSTER.
• Court: Missouri Supreme Court

220 S.W. 958

281 Mo. 618

STATE v. FOSTER.

No. 21883.

Supreme Court of Missouri, Division No. 2.

March 13, 1920.

Rehearing Denied March 26, 1920.

Appeal from Circuit Court, Buchanan County; H. W. Uttz, Judge.

Henry C. Foster was convicted of assault with intent to maim and do great bodily harm, and he appeals. Affirmed.

Randolph & Randolph, of St. Joseph, for appellant.

Frank W. McAllister, Atty. Gen., and Lewis H, Cook, Sp. Asst. Atty. Gen., for the State.

WALKER, J.

Appellant was convicted in the circuit court of Buchanan county in June, 1919, of an assault with intent to maim and do great bodily harm, and his punishment assessed at 12 months' imprisonment in the county jail. From the judgment rendered thereon he appeals.

Aside from formal averments, the information is as follows:

"That on or about the 7th day of August, 1918, at said county, Henry C. Foster, in and upon one Dennis Aubuchon, feloniously, on purpose and of his malice aforethought did make an assault, and did then and there on purpose and his malice aforethought feloniously shoot at him, the said Dennis Aubuchon, with a certain deadly and dangerous weapon, to wit, a double-barreled shotgun loaded then and there with gunpowder and leaden balls, which he, the said Henry C. Foster, then and there held in his hand, with intent then and there him, the said Dennis Aubuchon, on purpose of his malice aforethought feloniously to maim and commit great bodily harm, against the peace and dignity of the state."

Appellant and the prosecuting witness, Aubuchon, occupied adjoining tracts of land The former had built a wire gap in a fence which inclosed a small portion of his tract, the purpose of which was to admit his cattle to a spring of water. The fence of which this gap was a part connected with that inclosing the land of Aubuchon. The latter objected to the use of the gap by the appellant for the purpose mentioned. On the morning of the assault, Aubuchon, aided by his sons and a hired man, went to where the gap was located and proceeded to tear it and the fence connecting it with appellant's land down, and to build a closed fence of his own, instead of that of appellant. The latter, having been notified of the proceeding, went to the scene armed with a shotgun and an ax. Walking towards Aubuchon, he ordered him off of the premises. The latter ignored the order, when the appellant fired at him with the shotgun, a few shots striking him on the hand and hip. Aubuchon, with his sons and help, left the scene. Appellant thereupon cut the wires of the fence Aubuchon had built and replaced his own fence and the gap.

I. Information.— The statute (section 4481, R. S. 1909) upon which this prosecution is based provides, so far as applicable to the facts in evidence, that every person who shall on purpose and of his malice aforethought shoot at another with the intent to maim such person shall be punished by imprisonment in the penitentiary not exceeding 10 years. Thus the crime of shooting at a human being is specifically prohibited and by the terms of the statute classified as a felonious assault. State v. Curtner, 262 Mo. 218, 170 S. W. 1141; State v. Bunyard, 253 Mo. loc. cit. 355, 161 S. W. 756. An essential allegation in a charge based on this statute is that the act was committed feloniously on purpose and with malice aforethought. State v. Anderson, 252 Mo. 83, 158 S. W. 817; State v. Harris, 209 Mo. Yoe. cit. 434, 108 S. W. 28; State v. Temple, 194 Mo. loc. cit. 234, 92 S. W. 494; State v. McDonald, 67 Mo. 13; State v. Seward, 42 Mo. loc. cit. 208; State v. Harris, 34 Mo. 347. The felonious intent with which the act was committed is properly charged. State v. Bond, 191 Mo. 567, 90 S. W. 830. As we held in State v. Phelan, 65 Mo. 547, and numerous other cases reviewed in State v. Bond, supra, the charging of an offense under section 4481 is sufficient which follows the language of the statute, which embodies all of the essentials necessary to define the crime denounced, and hence more need not be pleaded. State v. Bersch, 276 Mo. 397, 207 S. W. loc. cit. 813. A charge thus framed conforms, not only to the rules of criminal pleading that nothing shall be left to implication or intendment, but to the constitutional requirement that the accused shall be apprised of the nature and cause of the accusation against him. State v. Stegner, 276 Mo. 427, 207 S. W. loc. cit. 828.

It is also contended that the information is defective in the omission of the word "of," preceding the words "malice aforethought," in the phrase "and did then and there on purpose and his malice aforethought," etc. The omission of the word "of" was not misleading, did not destroy the sense of the sentence from which it was omitted, and hence this contention is not entitled to serious consideration). The disposition of the courts in the review of criminal cases, while not ignoring or denying any substantial right of the accused, is to so construe the record of conviction as to promote the administration of justice. Such a purpose would be frustrated by the serious entertainment of such a frivolous contention as is here sought to be introduced. State v. Keener, 225 Mo. loc. cit. 494, 125 S. W. 747; State v. Perrigin, 258 Mo. loc. cit. 236, 167 S. W. 573; State v. Massey, 274 Mo. 578, 204 S. W. 541.

The addition of the words "and commit great bodily harm," following the word "maim" in the information, is also a subject of complaint. In what respect the appellant is injured by this addition we are not told. The added words are the equivalents of an averment of an intent on the part of the appellant to inflict an injury permanent in its nature or more serious than an ordinary battery. Territory v. Ayer, 15 N. M. 581, 113 Pac. 604; Lambert v. State, 80 Neb. 562, 114 N. W. 775; Boykin v. People, 22 Colo. 503, 45 Pac. 419; State v. West, 45 La. Ann. 14, 12 South. 7; McDonald v. State, 89 Tenn. 161, 14 S. W. 487. In short, they mean nothing more than is expressed by the word "maim," and the only tenable objection which can be urged to their use is that it is tautological. This may entitle the objection to rhetorical but not to judicial consideration. Nor does the use of the words complained of come within the rule of criminal practice that, if an allegation is made in an unnecessarily minute manner, the proof must satisfy the descriptive as well as the main part, as one is essential to the identity of the other, because the descriptive words here are redundant or mere surplusage, and may be so regarded. State v. Harris, 209 Mo. 423, 108 S. W. 28; State v. Akin, 94 Iowa, 59, 62 N. W. 667. "Lest, therefore," as Lord Hale said, in effect, "such overgrown curiosity and nicety of expression as is here exhibited should become a disease of the law, we apply the timely remedy of overruling this contention." 2 Hale, Pl. Cr. 193.

Notwithstanding the disposal of all of the objections to the information under precedents respectively applicable to each, all might have been held insufficient and immaterial under the liberal provisions of our statute of jeofails, in that none embody any defects or imperfections which tend to the prejudice of the substantial rights of the appellant Section 5115, R. S. 1009; State T. Severn, 225 Mo. 589, 125 S. W. 769; State v. McConnell, 240 Mo. 272, 144 S. W. 836; State v. Massey, 274 Mo. 585, 204 S. W. 541; State v. Allen, 267 Mo. 56, 183 S. W. 329.

II. Intent.—It is contended that there was a failure of proof of a specific intent on the part of appellant to commit the offense with which he was charged. This contention is based upon the assumption that an assault to maim, or in fact any assault denounced in section 4481, supra, belongs to that class of crimes of which a specific intent to accomplish a particular purpose is an essential element, and for which proof of general malice or criminal intent will not sustain a conviction, and, where this rule obtains, that the burden is on the state to establish, either by direct or circumstantial evidence, that the act was done with the requisite specific intent.:n such cases, however, it is sufficient to prove facts from which the specific intent may be inferred. Such inference is authorized, even in homicide cases, from the character of the assault, the use of a deadly weapon, and other attendant circumstances. To illustrate: In State v. Wansoug, 271 Mo. loc. cit. 57, 195 S. W. 900,...