State v. McDonald

• Decision Date: 31 October 1877
• Citation: 67 Mo. 13
• Parties: THE STATE v. MCDONALD, Appellant.
• Court: Missouri Supreme Court

67 Mo. 13

THE STATE

v.MCDONALD, Appellant.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Ozark Circuit Court.--HON. J. R. WOODSIDE, Judge.

E. L. Edwards & Son with Hale & McClenden for appellant.

1. The indictment does not charge the offense in the language of the statute. It is evidently drawn under the 29th section; and this court has held time and again, that, in drawing an indictment under this section, the offense must be charged to have been done “on purpose,” which is not done in this case. This defect is not cured by the attempt of the court to try defendant under § 32 of said statute. State v. Epps, decided at this term.

2. There is no allegation in the indictment, that defendant “had” and “held” said weapons in his hands, which is fatal on motion to quash a demurrer. Archbold's Crim. Plead. (3 Am. Ed.) p. 315.

3. It is not alleged in said indictment that the assault was made with intent to kill Cockrum. The indictment charges that part of the offense in this manner: “With the intent, him the said Henry McDonald, him the said James Cockrum, to kill and murder.” The indictment is ambiguous, and does not state whether it was McDonald or Cockrum, that was assaulted, and is therefore bad. State v. Dalton, 27 Mo. 13; State v. Dillihunty, 18 Mo. 331; State v. Derrossett, 19 Mo. 383.

4. The 1st instruction given for the State was erroneous. The court has no right to make out or charge a different offense from that presented by the grand jury. The 6th instruction takes the question of intent entirely from the consideration of the jury. The law presumes nothing against a defendant. The State must make out its case affirmatively, or the defendant must be acquitted. State v. McBride, 19 Mo. 239; State v. Stewart, 29 Mo. 419 ;State v. Williamson, 16 Mo. 394.J. L. Smith, Attorney-General, for the State.

1. Although the indictment was insufficient under the 29th section, yet it was sufficient under section 32, p. 449, Wag. Stat. State v. Stewart, 29 Mo. 419; State v. Seward, 42 Mo. 206; Wag. Stat., p. 1090, § 27.

2. It was not necessary to charge that defendant held in his hands the weapons with which he made the assault. State v. Dalton, 27 Mo. 13; Jennings v. State, 9 Mo. 852; State v. Bailey, 21 Mo. 484; 2 Arch. Cr. Pl. 284 (1); State v. Lutterloh, 22 Tex. 210; State v. Robey, 8 Nev. 312; State v. Urias, 12 Cal. 325; State v. Dent, 3 Gill & J. 8.

3. The 6th instruction taken by itself might be open to some objection, but it is well settled that all instructions are to be taken together, and, if they fairly present the law, the judgment will not be disturbed for that reason.

HENRY, J.

The defendant was indicted at the April term, 1877, of the circuit court of Ozark county, for an assault with intent to kill. The indictment charged “that Henry McDonald, on the 8th day of December, 1876, at the county, &c., did willfully, unlawfully, feloniously and of his malice aforethought, an assault make in and upon the body of one James Cockrum, with a pair of tongs of the length of two feet, and of the heft of five pounds, with a hammer of the heft of three pounds, and an axe handle of the length of two feet and of the diameter of two inches, the same being dangerous and deadly weapons, with the intent then and there, him the said Henry McDonald, him the said James Cockrum to kill and murder,” &c. At the October term, 1877, of said court, there was a trial of the cause, which resulted in the conviction of the defendant, and his sentence to imprisonment in the State penitentiary for a term of three years, and from this judgment he has prosecuted his appeal to this court. A motion to quash the indictment was overruled, and the alleged defects are that the offense is not charged in the language of the statute; that it is not alleged that defendant had and held the weapons in his hand; and that it was impossible for defendant to commit the offense in the manner charged in the indictment, because three weapons were charged to have been used at the same time.

1. AN INDICTMENT FOR AN ASSAULT WITH INTENT TO KILL.

It was evidently the intention of the pleader to frame the indictment under the 29th section, (Wag. Stat., p. 449), but he omitted to charge that the assault was made “on purpose,” and it has so often been held by the court that an indictment is not good under that section if those words are omitted, that it must be regarded as definitely settled. The indictment was not good under the 29th section. The State v. Epps,^a1 determined at this term, decided nothing more, and it is not to be regarded as overruling State v. Stewart, 29 Mo. 419, or State v. Seward, 42 Mo. 206, in which it was held that similar indictments to this, though bad as an indictment under the 29th, “sufficiently set out an offense under the 32nd section.” In the State v. Epps, our attention was not called to the 32nd section or to the above decisions, and soon after the opinion in that case was delivered, the error was discovered, and if this cause had not been submitted, it would have been rectified; and, if on a careful examination of the record we had not been satisfied that for other errors the judgment would have to be reversed, we should have reconsidered the case and affirmed the judgment.

2. AN INDICTMENT FOR AN ASSAULT WITH INTENT TO KILL.

The indictment in that case sufficiently charged an offense under the 32nd section. Here it was not an indispensable averment that defendant “ had and held in his hand” the weapons with which he is charged to have made the assault. That has never been held necessary in this State. State v. Dalton, 27 Mo. 13; Jennings v. The State, 9 Mo. 852; State v. Bailey, 21 Mo. 484.

3. AN INDICTMENT FOR AN ASSAULT WITH INTENT TO KILL.

The third objection to the indictment is, that it was impossible for defendant to make the assault as alleged. The charge in the indictment is, that on the day named defendant assaulted ____ Cockrum with three weapons; not that they were all used at the same instant of time, but in the assault which may have commenced with one, been prosecuted with another, and concluded with the third, and the evidence in the cause shows such to have been the facts as to two of the weapons. The defendant was in a blacksmith's shop. He was on the forge warming himself, holding a piece of an axe handle in his hand. The blacksmith says he appeared agitated, and kept looking through the crack of the shop, as if looking for some one. McClenden and Cockrum entered the shop. McClenden remarked that “he had backed Love out on a bet on the result of the election.” McDonald said, “no one knows it but you.” Cockrum then said, “there are others know it. I heard him.” McDonald, who was sitting on the forge, took up a hammer or a pair of tongs, and replied: “You are a G--d d--d liar. I'll knock your brains out, you can't talk to me.” Cockrum then got a pair of tongs, and they struck at each other over the shoulder of the blacksmith, who had placed himself between them. Cockrum probably struck first. McDonald went out of the shop, and immediately returned...