State v. Hendrickson

• Decision Date: 26 November 1901
• Citation: 165 Mo. 268,65 S.W. 1132
• Parties: STATE v. HENDRICKSON.
• Court: Missouri Supreme Court

65 S.W. 1132

165 Mo. 268

STATE v. HENDRICKSON.

Supreme Court of Missouri, Division No. 2.

November 26, 1901.

Appeal from circuit court, Polk county; Argus Cox, Judge. W. T. Hendrickson was convicted of felonious assault, and appeals. Affirmed.

B. J. Emerson and O. T. Hamlin, for appellant. The Attorney General and Sam B. Jeffries, for the State.

SHERWOOD, J.

The validity of the indictment is the only question urged in defendant's brief. The indictment has been held valid against the principal, Charles Hendrickson, in an opinion delivered by Burgess, J. (65 S. W. 550), and under that ruling the indictment must be held valid as to W. T. Hendrickson, the accessory, unless it be bad because of considerations now to be presented. It is urged that "the pleader attempted to put two counts in the indictment," but that both are bad, because they do not conclude "against the peace and dignity of the state." This is a mistake. There is but one count. Bishop says: "If the prosecuting power chooses, it may join as defendants in one count all the participants in a crime. As to which, the test is said to consider `whether each offender be guilty in some degree of the same crime, so that he might be separately convicted, even though another was the actual perpetrator. If each may be so convicted, their guilt is joint; but, otherwise, it is several.' And at common law, principal and accessory, including the accessory after the fact, as well as before, may be, and commonly are, so joined. Though the guilt of the accessory is stated after that of the principal, on which it is dependent, the whole allegation constitutes but one count, having properly one commencement only, and one conclusion." 1 Bish. New Cr. Proc. § 467. And the learned author, in another work, gives this form: "That A., etc. [the principal of the first degree, setting out the felony against him down to, but not including, the conclusion]. And [the jurors aforesaid, upon their oath aforesaid, do further present], that B., etc., on the day and year aforesaid [with force and arms], at the [place] aforesaid, in the county aforesaid, feloniously was present, aiding, abetting, and assisting the said A. the [felony and larceny] aforesaid to do and commit, against the peace," etc. Bish. Direc. & F. § 115. And in a note to section 113 of the same work it is said: "We sometimes meet with indictments wherein the different participants appear to be charged in distinct counts. Reg. v. Brannon, 14 Cox, Cr....