State v. Melvin

• Decision Date: 04 February 1902
• Citation: 66 S.W. 534,166 Mo. 565
• Parties: STATE v. MELVIN.
• Court: Missouri Supreme Court

66 S.W. 534

166 Mo. 565

STATE v. MELVIN.

Supreme Court of Missouri, Division No. 1.

February 4, 1902.

INDICTMENTS — EFFECT OF SECOND INDICTMENT — PRINCIPALS — EVIDENCE — INSTRUCTIONS — REQUESTS.

1. Under Rev. St. 1899, § 2522, providing, "If there be * * * pending against the same defendant two indictments for the same offense, * * * the indictment first found shall be deemed to be suspended by such second indictment and shall be quashed," the second does not ipso facto quash the first, and, having itself been quashed, the first remains with full force.

2. Defendant being a principal whether he stabbed a person, or was present, aiding and abetting another in so doing, evidence of either warrants a conviction.

3. The giving of an instruction like one asked for by defendant cannot be complained of by him.

4. Failure to instruct on motive is not error, there being no request therefor, and defendant not having requested the court to instruct on all the law of the case.

Appeal from circuit court, Platte county; A. D. Burues, Judge.

Dick Melvin was convicted of a felonious assault, and appeals. Affirmed.

The indictment in this cause was returned by the grand jury in the circuit court of Platte county on the 7th day of December, 1899, and charged the defendant with a felonious assault. Afterwards, at the same term, another indictment was preferred on the 9th of December, 1899, wherein it was charged that defendant committed a felonious assault upon the same person, one Jeff Simpson, and that Al. Melvin was present, aiding and assisting in said felony. When the defendant was required to plead at the December term, 1900, of said court, he filed a plea in abatement of the first indictment on which he was arraigned, for the reason that he averred that the finding and preferment of the said second indictment ipso facto quashed the first indictment, and that it was no longer pending, and prayed the judgment of the court to discharge him, and that said first indictment to which he was required to plead should be quashed. The indictment found on December 7, 1899, was numbered 1,709, and the indictment of December 9, 1899, was numbered 1,716. On the hearing of this plea the two indictments, with the dates of their filing, were offered, and read to the court, and on the part of the state the record of the court showing that on August 14, 1900, on motion of the prosecuting attorney, the said second indictment, numbered 1,716, had been quashed by the circuit court of Platte county, and the defendant discharged therefrom. The circuit court overruled the plea in abatement and to quash the indictment, and directed the defendant to plead to said indictment of December 7, 1899, and, the defendant standing mute, a plea of not guilty was entered for him on the record, and the cause proceeded. On the part of the state the evidence tended to prove that on Sunday, October 29, 1899, the defendant's mother and his brother John Melvin lived in the village of Waldron, in Platte county, and just across the street a brother of Jeff Simpson, the prosecuting witness, lived. The defendant, Dick Melvin, and his brother Al. Melvin, who at that time was only 17 years of age, were and had been for some time at work in the state of Kansas, just across the Missouri river from Waldron. There they met one Al. Owens. On Sunday, October 29, 1899, the three went to Waldron, the two Melvin boys ostensibly for the purpose of getting some new clothes their mother had made for them. They reached Waldron between 3 and 4 o'clock in the afternoon of that day. Al. Melvin took the lead when the three men left his mother's home, the defendant and Owens following him very closely. Jeff Simpson was just outside of the yard fence at his brother's house when Al. Melvin saw him, and without any apparent cause whatever said, "There is the d____d devil now; I can soon fix him," and rushed across the street at Simpson. Throwing a small bundle he had in his hands aside, he took out his knife, and assaulted Simpson, who repelled the attack, knocked off the blows, and struck young Melvin in the face with his hand. While this strife was thus proceeding, Dick Melvin, the defendant, with a knife in his left hand, rushed up behind and to the left of Simpson, and stabbed him. The knife passed through the walls of the abdomen, and entered the abdominal cavity, creating a wound which confined him to his room and bed for a month, and was considered by the physicians as extremely dangerous and hazardous. Immediately after the cutting, the defendant, Al. Melvin, and Owens hurriedly left the state, and the defendant, when arrested, was in the state of Kansas, and at first refused to return to Missouri without requisition papers, but finally did so. When defendant saw the blood from Simpson's wound, he said, "My God, boys, let's hit her for Kansas!" and they all three ran off as fast as they could go, and crossed the river into Kansas. On the part of defendant the evidence tended to show that Jeff Simpson began the assault, that Al. Melvin did the stabbing, and that defendant had no knife. Al. Melvin testified he did the cutting. Other facts will be noted, if necessary, in the opinion. The jury found defendant guilty, and assessed his punishment at two years in the penitentiary.

Jas. Hull and Guy Park, for appellant. The Attorney General and Jerry M. Jeffries, for the State.

GANTT, J. (after stating the facts).

1. The first insistence is that the court erred in refusing to sustain the motion to quash, or plea in abatement to the indictment returned on December 7, 1899, under which the defendant was convicted. Section 2522, Rev. St. 1899, which has remained unchanged in all the revisions of the General Statutes of this state since 1845, provides that: "If there be at any time pending against the same defendant two indictments for the same offense or two indictments for the same matter although charged as different offenses, the indictment first found shall be deemed to be suspended by such second indictment and shall be quashed." In State v. Eaton, 75 Mo. 589, wherein the contention was that until the first indictment was...