State v. Hayden

• Decision Date: 06 December 1916
• Docket Number: No. 19692.,19692.
• Citation: State v. Hayden, 190 S.W. 311 (Mo. 1916)
• Parties: STATE v. HAYDEN.
• Court: Missouri Supreme Court

190 S.W. 311

STATE v. HAYDEN.

No. 19692.

Supreme Court of Missouri, Division No. 2.

December 6, 1916.

Appeal from St. Louis Circuit Court; G. A. Wurdeman, Judge.

Frank Hayden, alias James Blair, alias John Blair, was convicted of an assault with intent to kill, and he appeals. Affirmed.

Defendant was convicted in the circuit court of St. Louis county of an assault with intent to kill one Julius Schoenbein, and his punishment assessed at imprisonment in the penitentiary for a term of five years. From this verdict and the judgment founded thereon he has taken, and after the usual motions now prosecutes, this appeal.

The assault in question occurred in the town of Wellston, St. Louis county, Mo., on the night of the 27th of February, 1913. Schoenbein, the prosecuting witness (and whom we shall so designate hereafter for convenience), was a deputy sheriff of St. Louis county, and he and three other officers were engaged in watching the office of the St. Louis Lumber Company; two of the officers having concealed themselves in the adjacent lumber yard, while the other two, one of whom was the prosecuting witness, watched the front of the lumber company office from the opposite side of the street. The night was dark, misty, and foggy. Shortly after the beginning of the vigil of the prosecuting witness and his brother officers, defendant and another approached the office of the lumber company. The companion of the defendant, spoken of in the testimony as the "short man," stopped at the office door, while defendant passed on, and, having apparently heard a noise in the lumber yard, began peering throught the picket fence which inclosed this yard. In the meantime Officer Robert Kaiser, a detective sergeant of the city of St. Louis, and one of the officers who had gone into the lumber yard, approached the picket fence inclosing the lumber yard (having heard the noise of the defendant's approach), and also looked through this fence. In doing so he shoved his face almost against that of defendant. Defendant immediately presented his pistol at Kaiser, thrust it against the latter's stomach, and instantly fired; but Kaiser turned aside quickly, and defendant missed him. Defendant then ran across the street and halted. Thereupon the prosecuting witness approached defendant and said to him: "We are officers. Halt!" Instantly defendant and his companion opened fire with pistols on the prosecuting witness and his brother officers, discharging at them a fusillade of shots, but without hitting either of them.

Both defendant and his companion escaped after the shooting, but some time afterward defendant was captured in the city of Omaha by Officer Kaiser, who identified him and brought him back for trial.

Defendant upon the trial put in no evidence and offered no witnesses whatever in his behalf. His theory seems to have been an alibi, though he was positively identified by Officer Kaiser as the man who confronted him at the picket fence. He was further identified by his height and size and by the clothes that he wore on the evening preceding the night of the assault; the evidence showing that the man who actually made this assault was at the time thereof clothed as was the defendant on the evening preceding said assault.

In passing, and in order that we need not take up time in discussing them in the opinion, we may say that certain questions as to the lack of allocution, the alleged insufficiency of the judgment, and the alleged fact that the bill of exceptions shows that the trial was had on the 19th of October, while the verdict was rendered on the 18th of October, are not borne out by the record. Whether, as averred, these infirmities appear in the bill of exceptions, we need not consider; for, what has for convenience been called the "record proper," properly shows them to be sufficiently regular. Other things, shown by the record and necessary to be stated in order to make clear the points urged for reversal, will be found set out in our discussion of the case in connection therewith.

Schooley & Mooney, of St. Louis, for appellant. John T. Barker, Atty. Gen., and Lee B. Ewing, Asst. Atty. Gen. (James V. Billings, of Jefferson City, of counsel), for the State.

FARIS, P. J. (after stating the facts as above).

Defendant urges upon us a number of contentions. Some of these are not such as to challenge our very serious consideration, and these will be dealt with somewhat summarily. Those of pith and moment and those most strenuously urged upon us are: (a) That the indictment is defective for that it fails to aver that the person alleged to have been assaulted was present at the time and place of the assault; (b) that defendant discovered after the trial, but before the filing of his motion for a new trial, new evidence; (c) that the verdict is too indefinite to support a judgment; and (d) that "the indictment was filed contrary to the provisions of section 5055 of our statutes." Other alleged errors are urged in the brief of defendant's learned counsel; but, since these are not noticed by him in his motion for a new trial, we are not called on to notice them here.

1. The indictment is, we take it, admitted by defendant to be good, except in respect of the specific objection which he makes to it, that is, that it fails to specifically aver that the person alleged to have been assaulted, to wit, Julius Schoenbein, was present at the time and place of the assault; in short, that it does not use, following the name of the prosecuting witness, the term "then and there being." Omitting caption, venue (correctly laid in the margin in St. Louis county), and merely formal parts, this indictment reads thus:

"The grand jurors for the state of Missouri, now here in court, duly impaneled, sworn and charged to inquire within and for the body of the county of St. Louis, and state aforesaid, upon their oath present and charge that Frank Hayden, alias James Blair, on the 27th day of February, A. D. nineteen hundred and thirteen at said county of St. Louis and state of Missouri, in and upon one Julius Schoenbein, feloniously, on purpose and of his malice aforethought, did make an assault, and did then and there on purpose and of his malice aforethought, unlawfully and feloniously shoot at him the said Julius Schoenbein with a certain deadly and dangerous weapon, to wit, a revolving pistol then and there loaded with gunpowder and leaden ball, which he, the said Frank Hayden, alias James Blair, then and there in his hand had and held, with the intent then and there, him, the said Julius Schoenbein, on purpose and of his malice aforethought then and there feloniously to kill and murder, against the peace and dignity of the state."

When all is said, the omission complained of goes merely to the venue of the act of assaulting Schoenbein. Indeed, this is putting the case too strongly by half against the state. For the place of the assault, at least the place or "venue of the defendant," is succinctly stated to be "at the county of St. Louis and state of Missouri." But at the risk of persiflage the complaint of defendant may be said to be that the venue of Schoenbein is not averred in specific terms. This court was confronted with a similar situation in the case of State v. McDonough, 232 Mo. loc. cit. 227, 134 S. W. loc. cit. 546, where it was said:

"Appellant assails the indictment as insufficient on the ground that, while the venue of the assault is properly laid and is also stated in the margin, there is no venue laid as to the averment of carnal knowledge.

"It is provided by section 5107, Revised Statutes 1909, that: `It shall not be necessary to state any venue in the body of any indictment or information; but the county or other jurisdiction named in the margin thereof shall be taken to be the venue for all the facts stated in the body of the same.' And section 5115 provides: `No indictment or information shall be deemed invalid, nor shall the trial, judgment or other proceedings thereon be...