State v. Higgins, 28522

• Decision Date: 18 November 1952
• Docket Number: No. 28522,28522
• Citation: State v. Higgins, 252 S.W.2d 641 (Mo. App. 1952)
• Parties: STATE v. HIGGINS.
• Court: Missouri Court of Appeals

Page 641

252 S.W.2d 641

STATE v.HIGGINS.

No. 28522.

St. Louis Court of Appeals, Missouri.

Nov. 18, 1952.

Motion for Rehearing or to Transfer to Supreme Court Denied.

Dec. 12, 1952.

Victor Packman, St. Louis, for appellant.

John J. Kelly, Asst. Circuit Atty., St. Louis, for respondent.

ANDERSON, Judge.

In this casedefendant, Joseph Higgins, was tried under an information charging him with the crime of assault with intent to ravish.Said trial resulted in a verdict finding defendant guilty of common assault and assessing defendant's punishment at three months in the workhouse and a fine of $100.Defendant has appealed.

The information was filed May 27, 1948, and alleged that on April 24, 1948, defendant'in and upon one Elizabeth Hartle, unlawfully and feloniously did make an assault, with intent her, the said Elizabeth Hartle, then and there unlawfully, forcibly and against her will, feloniously to ravish and carnally know, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.'

On January 17, 1950, the cause came on for trial.Said trial progressed from day to day and was completed on January 19, 1950.The Court, by appropriate instructions, submitted to the jury the issue of assault with intent to ravish.

By InstructionNo. 4 the jury were charged that if they found from the evidence that defendant was not guilty of assault with intent to ravish they should determine whether defendant was guilty of common assault, and instructed the jury, in substance, that if they found that defendant did 'unlawfully assault Elizabeth Hartle without intent to ravish and carnally know, and by placing his hand upon her', they should find defendant guilty of common assault.Among the verdict forms submitted were--one to be used in the event the jury found defendant guilty of assault with intent to ravish, and the other if they found defendant guilty of common assault.

The jury returned into court a verdict finding defendant guilty of common assault, and by said verdict assessed the punishment at six months in the City Workhouse and a fine of one hundred dollars.The other form of verdict above mentioned was returned unused.

Thereafter, defendant filed in said cause a motion to set aside the verdict finding defendant guilty of common assault and to grant him a new trial with 'reference thereto'.This motion was by the court sustained on April 3, 1950.Subsequently, and on June 2, 1950, defendant filed a motion to quash and a plea in bar, which was by the court overruled on October 26, 1950.Thereafter, and on November 6, 1950, defendant filed in said cause a plea of autrefois acquit.Said plea, as preserved in the bill of exceptions, is as follows:

'Now comes the defendant in the above entitled cause and avers that he has been acquitted of the felony charge of assault with intent to ravish against him, on the 19th day of January, 1950, in Division 12 of the Circuit Court of the City of St. Louis, and that to try him again on the felony charge would put him in jeopardy of his liberty for a second time for the same offense and would deprive him of his constitutional rights, as guaranteed by Section 19 of Article 1, of the Constitution of Missouri, 1945 [V.A.M.S.], and by the Fourteenth Amendment of the Constitution of the United States.

'Wherefore, defendant prays for such order as will prevent and bar his further prosecution on the matter in which he stands acquitted.'

The foregoing motion was heard by Judge Robert J. Kirkwood in Division 1 of the Circuit Court for Criminal Causes on November 8, 1950, and was overruled by said judge on said date.On November 9, 1950, said cause came on for trial and was on said date assigned to Division 12 of said court for trial.On November 13, 1950, the cause was called for trial in Division 12, and on said date defendant refiled in said cause his plea of autrefois acquit.In support of said plea, defendant offered the following in evidence: the two verdict forms heretofore mentioned;InstructionNo. 4, given at the previous trial, by which the jury was authorized to find defendant guilty of common assault; and the motion for new trial filed by defendant after the first trial.The court overruled defendant's plea.Thereafter, the trial progressed and resulted in a verdict of conviction for common assault.The appeal in this case was taken to the Supreme Court and that court transferred the appeal to this court on the ground that jurisdiction lay in this court.

Appellant assigns as error the action of the trial court in overruling his 'motion to quash and plea in bar'.Said motion is neither incorporated in, nor called for, in the bill of exceptions.We are, therefore, precluded from considering said assignment.State v. Tatman, 312 Mo. 134, 278 S.W. 713.

Appellant next assigns as error the overruling of his plea of autrefois acquit.In support of this assignment it is urged that when the State forced the appellant to stand trial on the charge of assault with intent to ravish he was denied rights guaranteed him by Sections 17and19 of Article 1 of the Missouri Constitution, and rights accorded him under Sections 556.240,556.260, and479.100 RSMo 1949, V.A.M.S.It is further urged that said action of the court constituted a denial of equal protection of the laws and of due process, in contravention of Section 1 of the Fourteenth Amendment of the Federal Constitution, andSection 10, Article 1 of the Constitution of Missouri.

The appeal in this case was taken to the Supreme Court, presumably on the ground that there were constitutional questions involved.As the Supreme Court transferred the case to this court, we must treat the transfer order as an adjudication of the fact that this court has exclusive jurisdiction of the appeal, and that the case involves no constitutional question.State ex rel. Cornelius v. McClanahan, 221 Mo.App. 399, 278 S.W. 88;State v. Nece, Mo.App., 255 S.W. 1075;Dickey v. Orr, 132 Mo.App. 416, 111 S.W. 910;State v. Veltrop, Mo.App., 6 S.W.2d 638.

In a prosecution for a felonious assault with intent to ravish a defendant may properly be convicted of a common assault.Section 556.230 RSMo 1949, V.A.M.S.;State v. Shaw, Mo.Sup., 220 S.W. 861;State v. Hoag, 232 Mo. 308, 134 S.W. 509.And, if a conviction of the lesser offense is had, and thereafter a new trial is granted, the cause stands as though there had been no trial at all, and defendant may be tried for the offense charged in the information.Article 1, Section 19, Missouri Constitution;State v. Stallings, 334 Mo. 1, 64 S.W.2d 643.There is no acquittal of the greater charge, hence no deprivation of any right accorded a defendant by Sections 556.240and556.260 RSMo 1949, V.A.M.S.

What we have said also disposes of appellant's contention that the circuit court had no jurisdiction to try the case.Said contention is based on the false premise that there was no felony charge pending against appellant at the time of the second trial.State v. Stallings, 334 Mo. 1, 64 S.W.2d 643;Section 19, Article 1, Const. of Missouri.

By his third assignment of error appellant contends that he could not be legally convicted of common assault under Section 556.230 RSMo 1949, V.A.M.S., because he was charged upon an information and not by indictment.Section 556.230 reads:

'Upon an indictment for an assault with intent to commit a felony, or for a felonious assault, the defendant may be convicted of a less offense; and in all other cases, whether prosecuted by indictment or information, the jury or court trying the case may find the defendant not guilty of the offense as charged, and find him guilty of any offense, the commission of which is necessarily included in that charged against him.'

Appellant contends that the foregoing statute must be strictly construed and confined to those cases where one being tried for assault with intent to commit a felony is charged by indictment.

The foregoing statute was enacted in 1879, R.S.Mo.1879, sec. 1655.At that time felonies could only be prosecuted by indictment.State v. Bonner, 178 Mo. 424, 77 S.W. 463.By the amendment to the Constitution of Missouri, adopted by the peopleNovember 6, 1900, indictments and informations became concurrent methods for the prosecution of felonies.Laws of Missouri, 1905, page 314;Art. 2, sec. 12,Constitution of Missouri 1875, V.A.M.S.;State v. Bonner, 178 Mo. 424, 77 S.W. 463.Thereafter, the Forty-first General Assembly amended Section 2476, R.S.Mo.1899, by providing that all felonies, with certain exceptions, should be prosecuted by indictment or information.Laws of Missouri, 1901, page 138.Said section is now Section 545.010 RSMo 1949, V.A.M.S.The same general assembly also enacted the following new section in lieu of Section 2482, R.S.Mo. 1899, Laws of Missouri, 1901, page 139, now Section 546.010 RSMo 1949, V.A.M.S.:

'Section 2482.The trial and all proceedings upon any information filed in a court of record shall be governed by the law and practice applicable to trials upon indictments in said court.'

It is our opinion that said section, when read in connection with Section 556.230, supra, authorizes a conviction for common assault where the person being tried is charged by information with an assault with intent to commit a felony.

Appellant relies upon State v. Clipper, 142 Mo. 474, 44 S.W. 264;State v. Carr, 142 Mo. 607, 44 S.W. 776;andState v. Cornelius, 143 Mo. 179, 44 S.W. 717.Those cases construe Sections 4289and4290 RSMo 1889, Sections 547.200,547.210 RSMo 1949, V.A.M.S., which sections allowed an appeal by the State whenever an indictment was quashed or rendered insufficient on demurrer, or when judgment was arrested, as not authorizing the State to appeal from an order quashing an information in a misdemeanor case, notwithstanding Section 4062, R.S.Mo.1889, Section 546,010 RSMo 1949, V.A.M.S., which provided that: 'The trial and...