State v. Layton

• Decision Date: 03 March 1933
• Docket Number: 32436
• Parties: The State v. Ben Layton, Appellant
• Court: Missouri Supreme Court

58 S.W.2d 454

332 Mo. 216

The State v. Ben Layton, Appellant

No. 32436

Supreme Court of Missouri

March 3, 1933

Appeal from Greene Circuit Court; Hon. John Schmook, Judge.

Affirmed.

Stratton Shartel, Attorney-General, for respondent; L. A Vonderschmidt of counsel.

(1) These assignments are general in character and do not specify in "detail and particularity" the errors complained of. R. S. 1929, sec. 3735; State v. Hancock, 7 S.W.2d 275; State v. French, 300 S.W. 793; State v. Standifer, 289 S.W. 856; State v. Murrell, 289 S.W. 859; State v. Martin, 295 S.W. 543; State v. Ellis, 234 S.W. 845; State v Rhodes, 292 S.W. 78. (2) Defendant by waiving the preliminary examination waived the defects in the complaint. State v. Flannery, 173 S.W. 1055; State v Jack, 209 S.W. 890; State v. Woodard, 273 S.W. 1049; State v. Piro, 246 S.W. 928. In the latter case the jurat was not affixed and in fact there was no testimony that the complaint was ever sworn to. (3) The information is good in form and substance and follows the statute. R. S. 1929, sec. 4014; State ex rel. Henry v. Allen et al., 263 S.W. 190; State v. Baird, 271 Mo. 9; State v. Duncan, 237 Mo. 195; State v. Helton, 234 Mo. 559; State v. Bond, 191 Mo. 568. As to the motion to amend the information, the defendant by his own testimony admitted that he intentionally fired into the house without any just provocation. (4) As to assignment 10 it seems to be the rule that "in prosecutions for crimes involving violence, the assaulted party may exhibit his wounds and scars to the jury." 16 C. J. 621; State v. Curtner, 262 Mo. 219. (5) Defendant admitted that he fired into the house in utter disregard of what the results might be. He said he heard a noise in the house and fired without intending to hit any particular person. If he desired to raise a question of fact as to his intent the court will not invade the province of the jury. State v. Hedrick, 296 S.W. 152; State v. Pinkard, 300 S.W. 748; State v. Cummins, 22 S.W.2d 777; State v. Brown, 163 Mo.App. 30. (6) Assignment 4 does not point out wherein the court failed to instruct on all the law and hence presents nothing for review. State v. Tummons, 34 S.W.2d 122; State v. Silvey, 296 S.W. 128. (a) Assignment 12 does not set forth in detail a statement of the reasons for giving the instructions requested and hence is not subject to review. State v. Bailey, 8 S.W.2d 57; State v. Randolph (Mo. App.), 296 S.W. 440. (b) Assignment 13. It appears from the record that separate forms for the verdict were provided. However, the defendant could not have been injured because the jury returned a proper verdict. (See authorities under [7].) (7) The verdict is responsive to the issues and is in approved form; and where the jury is unable to agree upon the punishment to be assessed the trial judge is authorized to fix the same. Sec. 3704, R. S. 1929; State v. Culbertson, 24 S.W.2d 980; State v. Fannin, 296 S.W. 84; State v. Schmittzehe, 3 S.W.2d 235; State v. Murchie, 225 S.W. 954.

OPINION

Ellison, P. J.

The defendant appeals from a conviction of felonious assault in the Circuit Court of Greene County. The jury being unable to agree on the punishment, the court assessed it at five years' imprisonment in the penitentiary. The defendant has filed no brief.

The evidence for the State in substance was that about four o'clock in the morning of April 11, 1931, the defendant, Layton, went to the home of the complaining witness, Mrs. Betty Eaves and her husband, Floyd Eaves, in the country near Walnut Grove in Greene County, looking for his wife, who was a sister of Mrs. Eaves. Defendant was armed with a shotgun and had a revolver concealed on his person. He called Mr. Eaves from his bed and out of the house and stated he had come for his wife, and that he was "going to get her this time if I have to shoot her damn brains out." Eaves informed the defendant that Mrs. Layton was not there. The defendant asked him where she was and Eaves told him she was in Polk County about fifteen miles away. Layton then said "get your clothes on, you are going to direct me over there." Eaves went back into the house and proceeded to dress, the defendant following him with the shotgun and remaining in the room.

About that time Mrs. Eaves, who had been awakened by the noise, "made a little racket" in the adjoining room. The defendant said "tell them fellows to stay out in there, don't one of them come in here." When Eaves had finished dressing he and the defendant went back out on the porch. Just about that time Mr. Eaves' nephew, Oliver Eaves, threw the door open and said "here, what's going on out here?" The defendant whirled around facing him. Floyd Eaves quickly reached around the defendant's body and seized hold of the shotgun to prevent the defendant from firing it, and cried to his nephew to shoot the defendant. The nephew went back into the house for a gun. While Floyd Eaves still kept his hold on the shotgun the defendant drew the revolver out of his pocket and about that time there was a little noise in the house behind the door opening on to the porch, which it seems was closed. The defendant fired the revolver twice, both shots striking Mrs. Eaves and inflicting flesh wounds, one on the arm and the other on the side above the hip. This shooting is the basis for the charge of felonious assault contained in the information.

The defendant's version of the occurrence was that after Floyd Eaves had seized hold of the shotgun in his hands and cried out to Oliver Eaves to shoot him, the defendant, he heard a noise in the house and thereupon shot the revolver into the house. He said "I figured it would keep them from shooting from the house." Other facts will be stated as necessary in the course of the opinion.

I. The defendant filed a motion to quash the information, a motion to quash the jury panel, and a "motion to prevent introduction of evidence," in all of which the charge is made that the information is so vague, indefinite and uncertain: (a) that it wholly fails to charge any offense known to the laws of the State; (b) that it cannot be determined from the information on what statute the charge is based; (c) that a conviction or acquittal under the information would not be a bar to a subsequent prosecution for the same alleged offense. Error in the overruling of these several motions is assigned in the motion for a new trial.

The statute, Section 4014, Revised Statutes 1929, provides that "every person who shall, on purpose and of malice aforethought, shoot at . . . another with a deadly weapon . . . with intent to kill . . . such person, shall be punished by imprisonment in the penitentiary not less than two years." The information charges that the defendant "did then and there, wilfully and unlawfully in and upon one Betty Eaves, feloniously, on purpose and of his malice aforethought, did make an assault, and did then and there on purpose and of his malice aforethought feloniously shoot at her, the said Betty Eaves, with a certain deadly weapon, to-wit: a revolver loaded with powder and leaden balls, which he, the said Ben Layton, then and there held in his hand, with the intent then and there her, the said Betty Eaves, on purpose and of his malice aforethought to kill and murder, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State."

While inartificially drawn and repetitious it will be seen at once the information substantially charges the defendant shot at Betty Eaves with a revolver, on purpose and maliciously, intending to kill her. These assignments are ruled against the defendant.

II. The aforesaid three motions, to quash the information, to quash the jury panel, and "to prevent introduction of evidence," of the overruling of which the motion for new trial complains, further severally assigned that the circuit court was without jurisdiction: (1) because the complaint by which the prosecution was instituted in justice court under Section 3467, Revised Statutes 1929, was not sworn to by the complainant; (2) and was based on hearsay evidence; (3) and because the defendant was not accorded a legal preliminary hearing under Section 3503, Revised Statutes 1929.

The defendant introduced testimony on these issues tending to show the complaint was signed by the complainant, Chas. L. Chalender, an assistant prosecuting attorney, and sent through the mail to the justice of the peace without being sworn to; and that the justice thereupon issued the warrant under which the defendant was arrested. Such was the vague recollection of the justice, and Mr. Chalender could not clearly recall the facts. But the jurat on the complaint recites it was sworn to before the justice, and a deputy sheriff who was present when the warrant was issued testified Mr. Chalender made oath to the complaint at that time. So there was evidence from which the circuit court could have found against the defendant on this issue of fact.

As to the complaint's being based on hearsay evidence, Mr. Chalender admitted he had no first hand knowledge of the facts attending the assault; and that he obtained the information on which he filed the complaint from parties present thereat. But the complaint is not expressed to be verified on information and belief; it contains a positive recital of the facts, unconditionally sworn to. We know of no reason why this is not entirely sufficient to meet the requirements of Section 3467, Revised Statutes 1929. [See 16 C. J. sec. 504, p. 292; State v. Carey, 56 Kan. 84, 42 P. 371.]

Furthermore all the contentions made by the defendant under this assignment must fail for the further reason that the defendant waived a preliminary hearing as the transcript expressly states. It...