State v. Jordan
| Decision Date | 01 December 1920 |
| Parties | THE STATE v. HOWARD JORDAN, Appellant |
| Court | Missouri Supreme Court |
Appeal from Clark Circuit Court. -- Hon. N. M. Pettingill, Judge.
Reversed and remanded.
John A Whiteside and John M. Dawson for appellant.
(1) The information was not verified according to the Statutes and the decisions of this court and should have been quashed. Secs. 5057, 5058, R. S. 1909; State v. Lawhorn, 250 Mo. 301. (2) The instruction No. 7, given for the State leaves out the word "wilfully," between the word "has" and the word "sworn." This instruction is wrong and reversible error. Wilfully means doing or omitting to do a thing knowingly. Felton v United States, 96 U.S. 702, 24 L.Ed. 875. Wilfully means not merely voluntary, but with a bad purpose. Commonwealth v. Kneeland, 20 Pick. (Mass.) 220. It is frequently understood as signifying an evil intent without justifiable excuse. Bishop, Criminal Law, sec. 428; Potter v. United States, 150 U.S. 446, 39 L.Ed. 214; State v. Buchler, 103 Mo. 203; State v. Palmer, 88 Mo. 568; Peterson v. Pusey, 237 Ill. 204; State v. Hunter, 181 Mo. 327. The instruction as given left to the jury the right to reject any or all the evidence on the part of the defendant, of any or all witnesses, who might be mistaken on any one subject about which they testified. (3) While voluntary drunkenness is not an excuse in this State for crime, it may be shown to exist, for, the purpose of showing "intent" on the part of the accused. 16 C. J. sec. 83, p. 107; Rice on Evidence, 622-623-624. The instruction should have further stated that the condition of the mind of the defendant could be taken into consideration, for the purpose of showing whether or not the defendant's mind was in a condition to form a criminal intent. (4) Instruction No. 2, on the part of the defendant should have been given, because it comprised all the necessary elements to constitute the offense with which the defendant was charged, or in other words, it was necessary for the jury to find all of the elements described in said instruction before they could find the defendant guilty. Drunkenness is no excuse for crime, and if the gun had been in working condition and defendant had shot and killed Milligan, he would have been guilty of manslaughter in some degree, even though he intended to do no harm, and did not know what he was doing when he discharged the gun. And if the gun had been in working order when defendant drew it on Milligan he would have been guilty of felonious assault, notwithstanding the fact that defendant had no illwill, hatred or evil intent toward Milligan, and did not draw the gun on Milligan, with the actual unlawful intent to kill or do him bodily harm; because the character of the weapon, being dangerous and deadly, would have supplied the unlawful intent. But this gun being in such a disabled condition that it could not be discharged, it was absolutely harmless, and could not supply the unlawful intent. If he had had the actual unlawful intent and had thought the gun was in working order, the fact that the gun was harmless would not take away the unlawful intent, it is true. But when there is no actual unlawful intent, the gun being so disabled that it could not be discharged, it does not supply the unlawful intent. (5) Instruction No. 3 should have been given for the reason that under the law of this State the pointing of a harmless gun is not a felonious assault. True it may be a disturbing of one's peace, but is not an assault with intent to kill. Under the law this gun was in the same condition as though it were unloaded, as the testimony on part of the State shows that it could not be discharged. A deadly weapon is one likely to produce death or great bodily injury. State v. Jarrott, 23 N.C. 76, 87; 2 Words & Phrases, 1853-1854; State v. Bowles, 146 Mo. 6; Price v. U.S. 156 F. 850; People v. Montgomery, 15 Cal.App. 314; State v. Yturaspe, 22 Idaho 360; Terr v. Gomey, 14 Ariz. 139; State v. Sears, 86 Mo. 169; 5 C. J. sec. 188, p. 725; Hall v. State, 105 S.W. 816. (6) As a general rule, intoxication cannot be proven to reduce the grade of the crime, or to show that the act was not a crime, or to prove no crime was committed; but in some cases it is admissible to show that no crime has been committed, or to show the degree of the crime. Thus, in his prosecution for maliciously shooting, evidence that defendant was so intoxicated that he could not form an intent to wound, is admissible. 4 Am. & Eng. Ency. Law (1 Ed.), p. 711; 4 Elliott on Evidence, sec. 2729, p. 38. Intoxication is always available to disprove a specific intent, such as passing counterfeit money with intent to cheat, or an assault with intent to murder or do bodily harm, and the like. 4 Am. & Eng. Ency Law (1 Ed.), p. 713. (7) This verdict is not a general verdict, but a special verdict. The information charged the defendant with an assault upon Jasper Milligan and the jury returned a special verdict, neither responsive to the issues nor in accord with, but in conflict with the case submitted to the trial jury by the instructions of the court. It is not responsive to the proof adduced to make out the case by the State. It is not responsive to the charge in the information. It is not responsive to the issues presented by the instructions of the court. The defendant was charged with a crime against Jasper Milligan, but the jury by its special verdict found him guilty of an offense against another Milligan. The verdict cannot sustain the judgment. 2 Bishop's New Criminal Procedure (2 Ed.), sec. 1005; 8 Words & Phrases, pp. 7293-95; 4 Words & Phrases (2 Series), pp. 1151-52; State v. Miller, 255 Mo. 231; State v. Modlin, 197 Mo. 376; State v. Cronin, 189 Mo. 663; State v. DeWitt, 186 Mo. 61; State v. Rowe, 142 Mo. 439; State v. Pierce, 136 Mo. 34; State v. Harmon, 106 Mo. 635; State v. Grossman, 214 Mo. 233; State v. Cornwall, 88 Mo.App. 190. It is always within the province of the jury to return a special or general verdict. State v. Bishop, 231 Mo. 411.
Frank W. McAllister, Attorney-General, and Henry B. Hunt, Assistant Attorney-General, for respondent.
(1) The information is not sworn to by the prosecuting attorney, nor is it based upon the oath of some person competent to testify, or supported by the affidavit of such person filed with the information. Secs. 5057, 5058, R. S. 1909; State v. Lawhorn, 250 Mo. 301; State v. Decker, 185 Mo. 183; State v. Bonner, 178 Mo. 429; State v. Kelly, 188 Mo. 450. (a) Objection that the information is not verified as required by law, must be by motion to quash, because the absence of proper verification is a mere formal defect. Sec. 5115, R. S. 1909; State v. Brown, 181 Mo. 232; State v. Tindall, 188 Mo. 337. (b) The motion to quash was filed in this cause at the first trial thereof, which resulted in a mistrial. Upon the second and last trial of said cause, the motion to quash was not renewed. The motion to quash was waived. (2) The verdict is bad, in that it finds the appellant "guilty of felonious assault upon Joseph Milligan." The information charges the assault to have been committed upon Jasper Milligan. State v. Miller, 255 Mo. 229. (3) The record proper does not disclose that the trial court rendered judgment and pronounced sentence. State v. Clapper, 196 Mo. 42; State v. George, 207 Mo. 17; State v. Smith, 207 Mo. 24; State v. Hodges, 207 Mo. 518. (4) By reason of the fact that appellant did not renew his motion to quash at the second trial of this case, the matters mentioned in said motion cannot be considered by this court. The information is sufficient in substance. Sec. 4481, R. S. 1909; State v. Prendible, 165 Mo. 332, 348; State v. Barton, 142 Mo. 453; Kelley's Crim. Law, p. 506, sec. 576.
The appellant was charged by information in the Circuit Court of Clark County, under Section 4481, Revised Statutes 1909, with an assault with intent to kill. Upon a trial he was convicted and his punishment assessed at two years' imprisonment in the penitentiary. From this judgment he appeals.
Jasper Milligan, the city marshal of Kahoka, was called to the residence of the appellant, who had been firing off a shotgun in the street and threatening to kill different parties. The marshal found appellant standing before his home with the gun in his hands. As he approached appellant said, raising the gun as if to fire: "You s -- of a b --, you are after me and I am going to kill you." Before he fired the gun it was forcibly taken from him and he and the marshal engaged in a scuffle in which appellant was knocked down and then taken to the police station. He was intoxicated at the time.
I. It is contended in the motion in arrest that the information was not verified by the oath of the prosecuting attorney or one competent to be sworn as a witness. [Sec. 5057, R. S. 1909.] This manner of challenging our attention is not sufficient to authorize a review of this assignment.
A motion in arrest goes only to defects appearing on the face of the indictment or information. The affidavit required to be made by the prosecuting attorney or one competent to be sworn as a witness is no part of the charge, but simply verifies it; to question its sufficiency, therefore, on account of a lack of the statutory requirement as to verification, a motion to quash becomes necessary. [State v. Bonner, 178 Mo. 424, 77 S.W. 463; State v. Schnettler, 181 Mo. 173, 79 S.W. 1123; State v. Brown, 181 Mo. 192, 79 S.W. 1111; State v. McGee, 181 Mo. 312, 80 S.W. 899; State v. Tindall, 188 Mo. 337.]
In the recent cases of State v. Lawhorn, 250 Mo. 293, 157 S.W. 344 and State v. Sykes, 285 Mo. 25, 225 S.W 904, the procedure indicated was pursued, and we held that the omission of the...
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