State v. Nieuhaus

• Decision Date: 02 February 1909
• Citation: 117 S.W. 73,217 Mo. 332
• Parties: STATE v. NIEUHAUS.
• Court: Missouri Supreme Court

117 S.W. 73

217 Mo. 332

STATE v. NIEUHAUS.

Supreme Court of Missouri, Division No. 2.

February 2, 1909.

Rehearing Denied March, 3, 1909.

1. ASSAULT AND BATTERY (§ 74) — MAIMING AND DISFIGURING—SUFFICIENCY OF INDICTMENT.

In a prosecution for violation of Rev. St. 1899, § 1849 (Ann. St. 1906, p. 1279), providing that if a person shall be maimed, disfigured, or receive great bodily harm, and his life be endangered by the act, procurement, or culpable negligence of another under circumstances which would constitute murder or manslaughter if death ensued, the person by whose act, etc., the injury is occasioned shall, in cases not otherwise provided for, be punished, etc., the indictment need not allege that the act was done willfully, intentionally, with malice, with a deadly or dangerous weapon, or under circumstances which, had death ensued, would have constituted murder or manslaughter.

2. INDICTMENT AND INFORMATION (§ 125) — MAIMING AND DISFIGURING—DUPLICITY.

Where an offense charged may be committed in different ways, its commission by different means may be charged in one count of an indictment, and hence an indictment under section 1849 (page 1279) was not duplicitous because charging the offense to be committed by assaulting with a whip and burning with a hot iron stove-lid lifter, both acts constituting the single offense of wounding and disfiguring under the statute, though either alone would also constitute an offense thereunder.

3. INDICTMENT AND INFORMATION (§ 125) — MAIMING AND DISFIGURING—DUPLICITY.

The indictment would not be duplicitous as charging two assaults in one count because a period of time elapsed between the assault with the whip and the burning with the stove-lid lifter sufficient for accused to go to the kitchen and return with the lifter, such a lapse of time being not sufficient to render the affair other than a single transaction.

4. INDICTMENT AND INFORMATION (§ 202) — DUPLICITY—AIDER BY VERDICT.

Where accused did not demur to the indictment as duplicitous, and did not move to quash it or ask that the state be required to elect upon which offense alleged therein, if more than one, it would proceed to trial, duplicity, if any, was cured by the verdict.

5. ASSAULT AND BATTERY (§ 58)—WOUNDING AND DISFIGURING—"WOUNDING."

Inflicting wounds on another by means of a rawhide whip and a hot stove-lid lifter constitutes a "wounding" within Rev. St. 1899, § 1849 (Ann. St. 1906, p. 1279), providing that where one shall be maimed, wounded, or disfigured, etc., by act of another under circumstances which would constitute murder or manslaughter if death ensued, the person occasioning the injury shall be punished, though the whip and stove-lid lifter were not deadly or dangerous weapons.

6. ASSAULT AND BATTERY (§ 75)—WOUNDING AND DISFIGURING—INDICTMENT.

In a prosecution for wounding and disfiguring under Rev. St. 1899, § 1849 (Ann. St. 1906, p. 1279), providing that where one shall be maimed, wounded, or disfigured, etc., by act of another under circumstances which would constitute murder or manslaughter if death ensued, the person occasioning the injury shall be punished, etc., it is not necessary to allege in the indictment that the assault was made with intent to kill.

7. ASSAULT AND BATTERY (§ 58)—"DISFIGURE."

Burning a person with a hot stove-lid lifter, thereby causing sores and lacerations, constitutes a disfigurement within Rev. St. 1899, § 1849 (Ann. St. 1906, p. 1279), the word "disfigure," as it has no technical meaning, being considered in its ordinary sense as meaning to mar the figure and to render less perfect or beautiful in appearance.

8. CRIMINAL LAW (§ 1169) — APPEAL — REVIEW —HARMLESS ERROR—ADMISSION OF EVIDENCE.

In a prosecution for wounding and disfiguring under Rev. St. 1899, § 1849 (Ann. St. 1906, p. 1279), the admission of testimony of the wounded person as to whether accused had ever put anything on the sores produced or done anything relative thereto, if improper, was not reversible error.

9. ASSAULT AND BATTERY (§ 86)—EVIDENCE— MATERIALITY.

In a prosecution for wounding and disfiguring under Rev. St. 1899, § 1849 (Ann. St. 1906, p. 1279), where accused claimed that she whipped prosecutrix to cure her of lying, evidence as to prosecutrix's habit of lying previous to the punishment in question and of punishment which accused had inflicted upon her for that habit before that time was properly excluded.

10. ASSAULT AND BATTERY (§ 96)—WOUNDING AND DISFIGURING—INSTRUCTIONS.

In a prosecution for wounding and maiming under Rev. St. 1899, § 1849 (Ann. St. 1906, p. 1279), where accused testified that she had whipped prosecutrix, a 13 year old girl, for lying, and the court charged fully submitting accused's right to administer reasonable discipline under the claim that she stood in the position of parent to prosecutrix, accused having testified to the facts upon which the charge was based, and having given her version of the cause for the whipping, and prosecutrix being allowed only to state what she was whipped for on the day in question and not to tell what had occurred previously, accused had the full benefit of her explanation as to the cause for administering the whipping.

11. CRIMINAL LAW (§ 463) — OPINION EVIDENCE —COMPETENCY—CAUSE OF BURNS.

A middle-aged woman with a family of four children who testified that she had often seen burns, and that she and her children have been burned, was competent to testify that wounds observed by her on a child and described were caused by burns, and that it looked like they had been caused by an iron point scraped on the body, though she was not an expert witness, such an opinion being within the range of common experience and observation.

12. CRIMINAL LAW (§ 463) — OPINION EVIDENCE —CAUSE OF BURNS.

A married woman 48 years old, who had examined a person's body and had described wounds thereon, was competent to testify that in her opinion the wounds were caused by burns from a hot iron and not by acid, where it appeared that she had seen burns and had burned herself with hot irons as well as with carbolic acid.

13. WITNESSES (§ 363) — CREDIBILITY — ANIMOSITY OF ADVERSE WITNESS.

It is competent in a criminal case to show the motive and animosity of an adverse witness, so that the jury may know what credit to give his statements.

14. CRIMINAL LAW (§ 1170) — APPEAL — REVIEW — HARMLESS ERROR — EXCLUSION OF TESTIMONY.

The exclusion of testimony as to animosity existing between accused and an adverse witness was not prejudicial, where the animosity was fully shown by other witnesses.

15. CRIMINAL LAW (§ 814)—INSTRUCTIONS— LESSER OFFENSE.

Though, in a prosecution for assault, if the evidence is doubtful as to the grade of the assault

committed, the court may charge for simple assault, yet where the state's evidence in a prosecution for feloniously wounding and disfiguring if true, establishes a felonious assault, and accused's evidence, if true, entitled her to an acquittal, a charge on simple assault was properly refused.

Appeal from Circuit Court, Perry County; Jos. J. Williams, Judge.

Olive M. Nieuhaus was convicted of feloniously and willfully assaulting and disfiguring another, in violation of Rev. St. 1899, § 1849 (Ann. St. 1906, p. 1279), and she appeals. Affirmed.

John V. Noell, for appellant. Herbert S. Hadley, Atty. Gen., and F. G. Ferris, Asst. Atty. Gen., for the State.

GANTT, P. J.

At the April term, 1907, of the circuit court of Perry county, an indictment was returned charging that the defendant at said county, on January 11, 1907, feloniously and willfully assaulted one Maggie Shine, and with a rawhide whip of the length of three feet, of the diameter of three-fourths of an inch at the large end thereof, and of the diameter of one-fourth of an inch at the small end of said whip, and with a hot iron stove-lid lifter of the length of nine inches, of the thickness of one inch, and of the weight of one pound, willfully and feloniously, by the act and procurement of the said Olive Nieuhaus, did strike, wound, maim, disfigure, cut, and stab her, the said Maggie Shine, then and there with said rawhide whip, and with the said hot iron stove-lid lifter, in and upon the face, neck, breast, abdomen, arms, hips, legs, and body of her, the said Maggie Shine, and did feloniously beat, bruise, maim, burn, and wound her, the said Maggie Shine, and the said Maggie Shine then and there in manner and form aforesaid was greatly maimed, wounded, and disfigured, against the peace and dignity of the state. At the same term of court, the defendant applied for and was granted a change of venue from the regular judge of said court, and, it appearing that the defendant and the prosecuting attorney could not agree upon any attorney as a special judge, the cause was set down for the 8th of July, 1907, and the Honorable Joseph J. Williams, judge of the Twenty-First judicial circuit, was called and requested by Judge Killian to hold said court, and on the 8th of July, 1907, Judge Williams appeared in response to said request and assumed the direction of the said cause. The defendant then made another application for a change of venue from said county on the ground that the inhabitants thereof were prejudiced against her. This application was heard and overruled, and the cause was then continued until the October term, 1907. On the 21st of October, 1907, the defendant was arraigned, and her plea of not guilty was entered. A jury was impaneled and the cause heard, and resulted in a verdict of guilty of wounding and disfiguring Maggie Shine both by whipping her with a whip and by burning her with a hot stove-lid lifter as charged in the indictment, and assessing her punishment at imprisonment in the penitentiary for two years. In due time, the defendant filed her motions for a new trial, and in arrest of judgment, which were by the court overruled. Sentence was then pronounced against the defendant, and from that...