State v. Melton

• Decision Date: 27 January 1891
• Citation: 102 Mo. 683,15 S.W. 139
• Parties: STATE v. MELTON.
• Court: Missouri Supreme Court

15 S.W. 139

102 Mo. 683

STATE v. MELTON.

Supreme Court of Missouri, Second Division.

January 27, 1891.

ASSAULT WITH INTENT TO KILL — LESSER OFFENSE.

1. Where an indictment simply charges defendant with an assault with a slung-shot with intent to kill, under Rev. St. 1879, § 1263, and makes no allegation of the infliction of an injury, the defendant is not bound to look beyond the indictment; and a conviction under section 1264 for "wounding, maiming, and disfiguring" is not authorized by section 1655, providing that 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 crime.

2. The right to defend one's brother is not greater than the brother's right to defend himself; and an instruction, on behalf of defendant, charged with assault with intent to kill, that if the wounding was done to prevent the commission of a felony upon, or the doing of great bodily harm to, defendant's brother, is properly amended by adding thereto, "unless you further find that" the brother "sought or brought on the difficulty."

Appeal from circuit court, Hickory county; W. I. WALLACE, Judge.

A. S. Smith and W. D. Harryman, for appellant. John M. Wood, Atty. Gen., for respondent.

MACFARLANE, J.

Defendant was indicted under section 1263, Rev. St. 1879, for an assault with intent to kill. Evidence was offered tending to prove such assault, and by means thereof the assaulted party was seriously wounded on the head. Defendant was convicted, and appealed to this court.

1. At the close of the evidence the court gave to the jury the following instruction, among others: "The court instructs the jury that if they believe from the evidence that defendant, at the county of Hickory and state of Missouri, at any time within three years before the filing of the indictment in this cause, feloniously assaulted James Swicegood with a slung-shot, and that the same was a deadly or dangerous weapon, with intent to kill said Swicegood, or that by such assault said Swicegood was maimed, wounded, or disfigured, or received great bodily harm, they will find the defendant guilty, and assess his punishment at imprisonment in the penitentiary for a term of not less than two years nor more than five years, or in the county jail not less than six months, or by a fine not less than $100 and imprisonment in the county jail not less than three months, or by a fine of not less than $100. This instruction, it will be seen, authorizes a conviction, under section 1264, for "wounding, maiming, and disfiguring." The instruction was improper, unless authorized by section 1655, which provides that "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." Secton 1655 has been construed several times by this court, and it has been held that under its provisions a conviction for the commission of the offenses designated in sections 1263 or 1265 would be good under an indictment founded upon section 1262, if the evidence authorized it. State v. Schloss, 93 Mo. 363, 6 S. W. Rep. 244. It has also been held that a party charged with an assault under section 1262, and convicted under section 1263, was not deprived of his constitutional right "to demand the nature and cause of the accusation" against him before being put upon trial. State v. Burk, 89 Mo. 635, 2 S. W. Rep. 10. The bill of rights was designed to protect the citizen from all oppressions of the government, and all of its departments; and refuge for the violation of a constitutional right cannot be taken behind a legislative act. Every citizen has the right to be advised of the "nature and cause of the accusation" against him before he can be required to answer thereto. Bill of Rights, § 22; State v. Clay, 100 Mo. 575, 13 S. W. Rep. 827. Hence, while the court, in the case of State v. Burk, supra, says: "When a party is indicted for a given offense, he is bound, by law, to take notice of whatever offense he may be convicted of thereunder, as the law governing the subject-matter and practice then stands," — the qualification is thereafter added that one "could not be convicted under section 1262 unless he had done all and more than is required to constitute the offense contemplated by section 1263." We think it clear that section 1655 was never intended to have a broader meaning than that a conviction for a lesser offense could only be had when that offense was necessarily proved in making proof of the greater offense charged. This defendant was indicted for an assault with a slungshot...