State v. Leonard
| Decision Date | 31 January 1856 |
| Parties | THE STATE, Defendant in Error, v. LEONARD, Plaintiff in Error. |
| Court | Missouri Supreme Court |
1. It lies in the discretion of the court, whether it will compel the State to elect the count of an indictment on which the defendant shall be tried. (State v. Jackson, 17 Mo. 544, affirmed.)
2. An indictment, under the 38th section of article 2 of the act concerning crimes and punishments, (R. S. 1845, p. 351,) which charges that the defendant feloniously assaulted and wounded M. D., wife of D. D., with a large stone held in his hand, &c., alleged to have been a deadly weapon, likely to produce great bodily harm and death, and her the said M. D. did then and there strike, beat, wound, and ill-treat with great force, which was likely to produce death, &c., is sufficient. The words “with intent her the said M. D. then and there to wound and ill-treat,” may be rejected as surplusage.
3. As to what constitutes a wounding within section thirty-eight of article two of act concerning crimes and punishments.
4. State v. York, infra, p. 462, affirmed.
Error to Dent Circuit Court.
The opinion of the court is sufficiently full in the statement of the facts.
Arnold, for plaintiff in error.
Gardenhire, for the State.
This is an indictment against the defendant, under the 34th and 38th sections of the second article of the act concerning crimes and punishments, (R. C. 1845, p. 350, 351). The defendant appeared and pleaded not guilty. Upon a trial, the jury found the defendant guilty on the first count of the indictment, and not on the second, and assessed his punishnent at a fine of five hundred dollars.
The only questions then that arise in this case are on the first count, and these questions, giving the defendant the benefit of every thing that is found on the record, relate in the first place to the refusal of the court to compel the state to elect which count of the indictment she would proceed under; in the second place, as to the propriety of the instructions given and refused; and lastly, as to the sufficiency of the indictment.
1. The first point, as to the election of the count in the indictment under which the state shall proceed, has been settled by this court against the defendant, in the case of the State v. Jackson, 17 Mo. Rep. 544; see also 3 Hill's Rep. 160. This point is therefore ruled against the defendant.
2. The indictment has two counts--the first is under the 38th section of article 2d, act of 1845, crimes and punishments; and the second under the 34th section of the same article. We have nothing to do with the second count, the jury finding the defendant not guilty under that count. The first count then charges (throwing off the verbiage) that the defendant feloniously assaulted and wounded Malissa Davenport, wife of David Davenport, with a large stone held in his hand, &c., alleged to have been a deadly weapon, likely to produce great bodily harm and death; and her the said Malissa did then and there strike, beat, wound, and ill-treat with great force, which was likely to produce death, &c. This is the substance of the charge. This, we think, is sufficient under the 38th section of article 2, above mentioned. The indictment is informal, but we think substantially good. The words, “with intent her the said Malissa Davenport then and there to wound and illtreat,” we think may be thrown off as surplusage; they form no part of the description of the offence; it is substantially set forth without them.
3. As to what constitutes a wounding under this statute, we may suppose from the evidence that the prosecutrix was wounded in the legal sense of the term; for, she says, that “there is a scar left still,” made by the wound. In Rex v. Payne and another, it was held, if a person strike another with a bludgeon, and break the skin and draw blood, it was a sufficient wounding to be within the statute 9 Geo. IV, ch. 31, sec. 13. Under this act, it is not at all material what the instrument is with which the party is wounded. The...
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The State v. Webb
...fists. At least, a fairly exhaustive search for such a one has not been rewarded. These are the cases and the instrumentalities: State v. Leonard, 22 Mo. 449 (a large stone, said to have been a "deadly weapon"); Johnston v. State, 7 Mo. 183 (a stick of timber); Jennings v. State, 9 Mo. 862 ......
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State v. Webb
...491, and cases supra. That the prosecuting witness was wounded and received great bodily harm abundantly appears from the facts. State v. Leonard, 22 Mo. 449; State v. Nieuhaus, 217 Mo. loc. cit. 347, 117 S. W. 73. To support this charge it is not necessary to establish that the wounds infl......
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State v. Nieuhaus
...that the evidence conclusively showed there was neither felonious wounding nor disfiguring of the prosecutrix. This court in State v. Leonard, 22 Mo. 449 (1856), defined what would constitute a wounding under the section which this prosecution is based, in the following words: "As to what c......
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State v. Richmond
...it is apparent that it has been exercised oppressively or to the manifest injury of the accused. [State v. Jackson, 17 Mo. 544; State v. Leonard, 22 Mo. 449.] State v. Gray, 37 Mo. 463, there were two counts in the indictment, one for larceny, the other for receiving stolen goods knowing th......