State v. Gray

• Court: Missouri Supreme Court
• Writing for the Court: SCOTT
• Citation: State v. Gray, 21 Mo. 492 (Mo. 1855)
• Decision Date: 31 July 1855
• Parties: THE STATE, Respondent, v. GRAY, Appellant.

21 Mo. 492

THE STATE, Respondent,

v.GRAY, Appellant.

Supreme Court of Missouri.

July Term, 1855.

1. An indictment of several under the 38th section of the 2d article of the act concerning crimes and punishments, (R. C. 1845,) which charges that the assault was with a “knife which they in their right hand then and there held,” is bad.

Appeal from Polk Circuit Court.

Gray was indicted with others, under the statute, for a felonious assault, and upon a separate trial was convicted. No motion to quash the indictment or arrest the judgment was made in the court below. At the trial, the court excluded evidence to show that the party assaulted was trespassing upon land of which defendant was in possession at the time of the assault.

F. P. Wright, for appellant, in his brief, relied upon the exclusion of the evidence and error in the instructions for a reversal of the judgment.

Gardenhire, (attorney-general,) for the State.

SCOTT, Judge, delivered the opinion of the court.

The judgment rendered in this case must be arrested for the defects contained in the indictment. The defendants are charged under the 38th section of the act concerning crimes, 2d article, with having jointly made an assault; and several being indicted, it is charged that they, with a knife, which they then and there with their right hand held, made an assault, &c. This is an impossibility. It...