State v. Hendrickson
| Decision Date | 26 November 1901 |
| Parties | THE STATE v. CHARLES HENDRICKSON, Appellant |
| Court | Missouri Supreme Court |
Appeal from Polk Circuit Court. -- Hon. Argus Cox, Judge.
Affirmed.
B. J Emerson and O. T. Hamlin for appellant.
(1) The indictment is fatally defective because it does not charge the assault was made with felonious intent. The indictment herein attempts to charge a felony that is a crime which is liable to be punished by imprisonment in the penitentiary not one which must be thus punished. R. S. 1899, sec. 1847. Being thus a felony, it was indispensable that the indictment should charge that the act, to-wit, the assault, was done with felonious intent, because without felonious intent there can be no felony. State v. Clayton, 100 Mo. 516; State v. Doyle, 107 Mo. 36; State v Norman, 136 Mo. 2. (2) The pleader attempted to put two counts in the indictment. Both are bad because they do not conclude "against the peace and dignity of the State." Constitution, sec. 38, art. 6; State v. Lopez, 19 Mo. 254; State v. Pemberton, 30 Mo. 376.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
(1) The felonious intent is sufficiently charged in the instrument. The indictment charged that the assault was feloniously committed, hence, it became unnecessary to repeat the word "feloniously" immediately preceding the word "intent." State v. Comfort, 5 Mo. 357; State v. Chandler, 24 Mo. 371; State v. Seward, 42 Mo. 206; State v. Webster, 77 Mo. 566; State v. Jones, 86 Mo. 623; State v. Smith, 80 Mo. 516. An examination of the indictment would disclose that it is a substantial compliance with the form laid down by Kelley in his Criminal Law, section 579, page 381. In this case the indictment charged the offense to have been made feloniously, which, of course, means that the defendant willfully and feloniously intended to commit the crime charged. This, we think, is sufficient to charge criminal intention. (2) It is charged, upon the part of the appellant, that the prosecuting attorney attempted to put two counts in the indictment, and that both are bad because they do not conclude, "against the peace and dignity of the State." The indictment does not disclose any attempt upon the part of the prosecuting attorney to present two counts in the indictment. It is true the words, "And the jurors aforesaid, upon their oaths aforesaid, do further present," etc., are found in the indictment, but it certainly can not be said that these words of themselves separate the indictment into an attempt at two counts. While the indictment may be said to be not artificially drawn, yet there is sufficient to charge the appellant with having committed a felonious assault and with having aided, abetted and assisted in the crime. Where the indictment, in cases of this kind, follows the language of the statute, it is sufficient. State v. Phelan, 65 Mo. 547; State v. Little, 67 Mo. 624; State v. Chumley, 67 Mo. 41; State v. Fraker, 148 Mo. 143. In cases of this kind, the general charge that the assault was made "with intent," etc., is sufficient. State v. Smith, 80 Mo. 516.
Defendant was convicted in the circuit court of Polk county under an indictment charging him with feloniously assaulting one D. S. Hanes with a knife, a deadly weapon, with intent to kill, and his punishment fixed at a fine of one hundred dollars. He appeals.
The indictment, leaving off the formal parts, is as follows:
"The grand jurors for the State of Missouri, summoned from the body of Polk county, impaneled, charged and sworn, upon their oaths present that Charles Hendrickson, late of the county aforesaid, on the twenty-third day of January, 1900, at the county of Polk, State aforesaid, upon the body of one D. S. Hanes then and there being, feloniously and willfully, with a deadly weapon, to-wit, a knife, which he the said Charles Hendrickson then and there had and held, did then and there make an assault with the intent him, the said D. S. Hanes, then and there to kill, and the jurors aforesaid, upon their oaths aforesaid, do further present that W. T. Hendrickson then and there feloniously was present aiding, abetting and assisting the said Charles Hendrickson the felony and assault aforesaid, feloniously to do and commit, against the peace and dignity of the State."
It is claimed that the indictment does not allege that the assault was committed with a felonious intent, in that the word "feloniously" is not used next preceding the word "intent," and is therefore fatally defective. This contention may be conceded to be correct, unless the word "feloniously," as theretofore used in the indictment, is connected with the assault, because all felonies must be charged to have been committed feloniously.
The indictment charges that defendant, on the twenty-third day of January, 1900, at the county of Polk . . . . upon the body of one D. S. Hanes, then and there being, feloniously and willfully, with a deadly weapon, to-wit, a knife, which he then and there had and held, did then and there make an assault with the intent him the said Hanes then and there to kill, and in so far as the charging part of it is concerned is in the exact language as near as may be, as the form laid down in such cases by Kelly in his Criminal Law and Practice, page 381.
In State v. Chandler, 24 Mo. 371, an indictment in all material respects like the one at bar except the assault in that case was charged to have been committed with malice aforethought under what is now section 1847, Revised Statutes 1899, while the one under consideration was drawn under section 1848, Revised Statutes 1899, was expressly approved by this court.
The indictment whose sufficiency was passed upon in the case of State v. Webster, 77 Mo. 566, charged that "Samuel Webster, with force and arms, at the county of Schuyler, and State aforesaid, upon the body of one John T Varner, in the peace of the...
To continue reading
Request your trial