State v. Johnson

• Decision Date: 31 October 1883
• Citation: 81 Mo. 60
• Parties: THE STATE v. JOHNSON, Appellant.
• Court: Missouri Supreme Court

81 Mo. 60

THE STATE

v.JOHNSON, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Barry Circuit Court.--HON. W. F. GEIGER, Judge.

AFFIRMED.

J. M. Patterson for appellant.

D. H. McIntyre, Attorney General, for the State.

This court will not reverse a judgment because it is against the evidence, unless there is a total absence of evidence, or it fails so completely to support the verdict that the necessary inference is, that the jury acted from prejudice or partiality. State v. Musick, 71 Mo. 401; State v. Warner, 74 Mo. 83. The court properly instructed the jury as to the offense charged in the indictment. 1 Wag. Stat., § 32, p. 449. And it was competent to convict of assault and battery under the charge, if the evidence showed him to be guilty only of that offense. R. S. 1879, § 1655; Cooley's Const. Lim., (3 Ed.) p. 272. It does not appear from the record what instructions were given for defendant or what refused. Merely marking “given” or “refused” along the margin of instructions, is no entry, and indicates nothing.

PHILIPS, C.

The appellant was indicted in the month of September, 1879, in the Barry circuit court, for a felonious assault upon one Jesse Clark. On the trial, under instructions of the court so authorizing them, the jury returned a verdict of guilty of simple assault and battery, assessing a fine of one dollar and costs. From this judgment the defendant has appealed to this court.

I. The principal and only material question to be decided is, the right of the court and jury, under the indictment for a felonious assault, to convict the defendant of assault and battery. The authority for this ruling of the court, rests on section 1655, Rev. Stat. of 1879, which is as follows: “Upon an indictment for an assault with intent to commit a felony, or for a felonious assault, the defendant may be convicted of a lesser offense; and in all other cases, whether prosecuted by indictment, information or before a justice of the peace, 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.”

Prior to the enactment of this section, which did not take effect until November, 1879, no conviction of the simple assault and battery, could have been had under this indictment. For by section I, Ch. 83, p. 852, Wag. Stat. Vol. 2, it was provided that: “Hereafter, no assault, battery or affray shall be indictable, but all such offences shall be prosecuted, and punished in a summary manner, before justices of the peace, as hereinafter provided.” The contention of the appellant is, that as the offense and indictment were anterior to the enactment of said section 1655, he is exempt from its operation, by virtue of section 15, Art. 3, of the state constitution, which declares: “That no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, * * can...