State v. Ivy

• Decision Date: 02 February 1917
• Docket Number: No. 20015.,20015.
• Citation: 192 S.W. 737
• Parties: STATE v. IVY.
• Court: Missouri Supreme Court

192 S.W. 737

STATE v. IVY.

No. 20015.

Supreme Court of Missouri, Division No. 2.

February 2, 1917.

Appeal from Circuit Court, Pemiscot County; W. N. Evans, Judge.

Martha Ivy was convicted of felonious assault, and she appeals. Affirmed.

Sam J. Corbett, of Caruthersville, and Hudson & Hudson, of St. Louis, for appellant. John T. Barker, Atty. Gen. (Tipton & Le Mire, of Fulton, of counsel), for the State.

WALKER, P. J.

In an information filed in the circuit court of Pemiscot county defendant was charged, under section 4483, R. S. 1909, with a felonious assault. Upon a trial she was convicted, and her punishment assessed at three years' imprisonment in the penitentiary, from which sentence she appeals.

In July, 1915, the defendant and her husband resided in the city of St. Louis. The prosecuting witness, a little girl named Diely Sheppacher, who had theretofore lived with her grandfather in St. Louis, went to make her home with defendant and her husband. A few days thereafter they removed to Netherlands, a village in Pemiscot county, taking the little girl with them. Their treatment of the child for some time thereafter was marked with kindness, but during a period of four or five weeks preceding November 17, 1915, defendant at various times severely punished the child by whipping her, on one occasion with a heavy leather strap, and in addition struck her over the head with a chair. On the 17th of November, 1915, defendant took the child to Hayti, a town in Pemiscot county, and put her on a train for St. Louis, evidently intending to return her to her grandfather. The train crew testified as to the bruised and wounded condition of the child when placed on the train; and a reputable physician at the city of St. Louis who examined her the day after her arrival in that city testified at length and with minuteness as to her physical condition, and drew the conclusion therefrom that it was due to her having been beaten with some heavy blunt instrument; besides witnesses testified that they had seen the defendant whip the child with the leather strap. This is substantially the state's testimony. We have avoided the details, which show that the bruised and wounded condition of the child could not have been otherwise than intentionally inflicted. One Louis Hudson, counsel for defendant, testified that she was a peaceable, law-abiding citizen. She testified that she had on a few occasions whipped the child with a leather strap, but denies any knowledge as to how the latter received the wounds and bruises, and that she never tied the child to a bedpost or struck her with a chair.

I. The information was in two counts. The state elected to try the defendant upon the second, drawn under section 4483, R. S. 1909, and charging a felonious assault. The objection urged to the information is that it charges separate and distinct felonies in the same count. While different instruments or weapons are named, but one offense is charged, namely, a wounding or bruising of the prosecutrix. While either of these may constitute a crime, as charged, they embody only one offense. We had occasion in State v. Nieuhaus, 217 Mo. loc. cit. 344, 117 S. W. 73, to carefully consider an indictment similar in all of its material averments to that before us and to which a like objection was made. We held, following a number of earlier cases, that it did not charge several but only one offense, and hence was not obnoxious to criticism. The cases sustaining this conclusion are cited in the Nieuhaus Case, and their further repetition is not necessary.

II. No instructions were asked by defendant. The instructions given by the court define the offense under the facts and state the punishment authorized if defendant be found guilty; what constitutes a wounding; the limit of the authority of defendant in punishing the child while under her care and subject to her discipline; reasonable doubt; the presumption of innocence; the manner in which good repute, if shown, is to be considered in connection with the other evidence and the rule as to the weight to be given defendant's testimony. These instructions, under the evidence, presented the case fully and fairly to the jury, and are approved in like form in State v. Nieuhaus, 217 Mo. 332, 117 S. W. 73. No instruction was given on common assault. There was no evidence to sustain such an instruction. Under this state of facts we held in the Nieuhaus Case, and earlier in the Duncan Case, 142 Mo. 456, 44 S. W. 263, error was not committed in not instructing for a common assault.

III. The verdict was in the following form:

"We, the jury, find the defendant guilty as charged in the second count of the information and assess her punishment at three years in the penitenthery."

It is urged that the verdict is against the weight of the evidence, that it is excessive, and that it is unintelligible. The evidence was ample, not only to submit the case to the jury, and hence preclude our interfering with same (State v. Beverly, 201 Mo. loc. cit. 559, 100 S. W. 463), but more than this, it was in no sense excessive. The offense is characterized by a species of cruelty fortunately not frequent and of such a nature as to admit of no palliating circumstances. Three years' imprisonment is not a severe sentence for such a crime.

While we have nothing to guide us in determining what is meant by the verdict being unintelligible, except defendant's motion for a new trial, we infer that the ground for this complaint is that the word "penitentiary" is misspelled; this is the...