State v. Grimes

• Decision Date: 28 February 1888
• Parties: THE STATE, Respondent, v. THOMAS GRIMES and JAMES GRIMES, Appellants.
• Court: Missouri Court of Appeals

29 Mo.App. 470

THE STATE, Respondent, v. THOMAS GRIMES and JAMES GRIMES, Appellants.

Court of Appeals of Missouri, St. Louis.

February 28, 1888

APPEAL from the Newton Circuit Court, HON. M. G. MCGREGOR, Judge.

Affirmed.

A. J HARBISON and JOSEPH CRAVENS, for the appellants: The indictment in this case is bad for the reason it charges that both defendants, at the same time and place, and with one knife held in each of their right hands, made the assault which is absurd and impossible. State v. Gray, 21 Mo. 492; State v. Steely, 65 Mo. 222; 1 Chit. Crim Law, 231; State v. Flint, 62 Mo. 393; State v. Hayward, 83 Mo. 299.

THOMAS R. FREEMAN, for the respondent.

OPINION

THOMPSON J.

The defendants were jointly indicted for a felonious assault with intent to kill, under Revised Statutes, section 1262, were convicted of a common assault under the provisions of Revised Statutes, section 1655, and were sentenced each to pay a fine of one hundred dollars, and to be imprisoned in the county jail for a period of three months, as provided in Revised Statutes, section 1265.

I. The first question relates to the sufficiency of the indictment. It recites, " that Thomas Grimes and James Grimes, late of the county aforesaid, on or about the second day of November, 1886, at the county of Newton and state of Missouri, upon the body of one William Culkin, then and there being feloniously, on purpose, and wilfully, with a deadly and dangerous weapon, to-wit, a knife, which they, the said Thomas Grimes and James Grimes, each then and there had and held in each of their hands, did then and there make an assault with the intent, him, the said William Culkin, then and there to kill and murder, against the peace and dignity of the state of Missouri." The objection urged against it is, that it charges an impossibility, namely, that the assault was made with a knife which each of the defendants held in his hand; and the ruling of the Supreme Court in State v. Gray, 21 Mo. 492, is appealed to in support of this position. In that case a joint indictment against several defendants for an assault, which charged that " they, with a knife, which they then and there with their right hand held, made an assault," etc., was held bad as charging an impossibility. Although the indictment in the present case charges that the defendants " each then and there held" the knife, etc., yet it would be bad under this decision if it were still authority in this state. It was not approved in State v. Steeley, 65 Mo. 222, as counsel for the defendants claim, but was merely cited and distinguished. It was overruled, though not mentioned, in the subsequent case of State v. Dalton, 27 Mo. 13, where a joint indictment against two for an assault charged that they " feloniously and wilfully did make an assault with a certain knife, etc., which they, etc., then and there in their right hand had and held," etc. Although this indictment was open to precisely the same objection as the one in State v. Gray, supra, and as the one in the present case, and although the Supreme Court conceded that it was in part absurd, yet it was held cured by the statute of jeofails relating to criminal cases. This decision was quoted with approval in State v. Payton, 90 Mo. 220, 225, 226, and remains the law in this state. We must, therefore, hold that the indictment, though inartificially drawn, is cured by the statute of jeofails relating to criminal cases.

II. Another objection is, that the common assault referred to in Revised Statutes, section 1265, is not a lesser offence of the felonious assault described in Revised Statutes, section 1262, within the meaning of Revised Statutes, section 1265 which permits the conviction of a lesser offence. We are not of this opinion. State v. Burk, 89 Mo. 635. While this last case is...