State v. Ostman
| Decision Date | 22 March 1910 |
| Parties | STATE OF MISSOURI, Respondent, v. HENRY OSTMAN, Sr., et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from St. Charles Circuit Court.--Hon. Jas. D. Barnett, Judge.
AFFIRMED.
Judgment affirmed.
W. H Clopton for appellants.
(1) The motion to require the prosecuting attorney to elect on which count he would proceed should have been sustained. In the first count defendants are charged with a felony. In the second with a misdemeanor. Felonies and misdemeanors cannot be joined in the same indictment unless specially authorized by statute. Hildebrand v. State, 5 Mo. 548; State v. Porter, 26 Mo. 201; State v Kneeland, 90 Mo. 337. (2) The first instruction given by the court is clearly erroneous. The first count charges that William Ostman made the assault with a deadly and dangerous weapon, to-wit, a stick of wood, etc., with intent, the said Henry L. Schafer . . . feloniously to kill and murder. The second count charges that Henry Ostman, Jr., and Henry Ostman, Sr., were present, aiding and abetting William Ostman. The instruction charges the jury that if they believe that the "defendants" did make an assault on Henry L. Schafer with a dangerous weapon, to-wit, a large stick of wood of the length of four feet, etc., by striking said Schafer on the head therewith, etc. The instruction should have charged the jury that if they believed William Ostman struck the blow and that Henry Ostman and Henry Ostman, Jr. were present aiding and abetting William Ostman, they were also guilty of assault. (3) The second instruction is faulty for the same reason. The third count of the information charges that Henry Ostman, Sr., assaulted Schafer. The second instruction tells the jury that if they, the defendants, assaulted Schafer, they will find the defendants guilty, etc. There was no evidence that any of the defendants assaulted Schafer except Henry Ostman, Sr. Two persons may be charged in an indictment for a felony as being principals though only one committed the act and the other stood by as an aider and abettor, both are equally guilty, and an indictment may either allege the matter according to the fact, or charge them both as principals in the first degree. State v. Anderson, 89 Mo. 333; State v. Peyton, 90 Mo. 226. But if A is charged with being the principal and B and C as accessories, it is error to instruct the jury that if either struck the blow the others are guilty. (4) The error of the second instruction is not cured by the fourth and fifth instructions. The instructions are confusing and misleading. The jury should have been instructed under the first and second counts of the information that if they believed that on the day named William Ostman feloniously and with malice aforethought, etc., made an assault on William Schafer with a dangerous and deadly weapon, etc., and that Henry Ostman and Henry Ostman, Jr., were present aiding and abetting William Ostman, then all were guilty. (5) The fifth instruction is radically wrong. The defendants are entitled to know by the information what they are charged with, and the instructions of the court should confine the consideration of the jury to the offense charged in the information. The fifth instruction tells the jury that if they believe "that either or any one of the defendants actually assaulted and struck Henry L. Schafer with the intention to kill him, said Schafer, or to do him great bodily harm, and further find that the other defendants or any of them were present aiding, abetting, encouraging, or ready, if necessary, to aid, assist or encourage the defendant or defendants actually making such assault, if it became necessary to do so, then the defendant so doing or so present, are equally guilty with the one actually making the assault. The instruction is also erroneous in that it blends the law relating to felonies with the law relating to misdemeanors, and the law for the principal and that of the accessories, so that the jury under that instruction could not intelligently consider the evidence. The statute of the State defines who are accessories before the fact to be every person who shall be a principal in the second degree in the commission of any felony, or shall be an accessory to any murder or other felony before the fact, shall, upon conviction, be adjudged. Sec. 2364, p. 645, R. S. 1899. Accessories after the fact are confined to cases of felony. Also sec. 2365. (6) There is no such offense as accessories to misdemeanors under our statute, nor of aiders or abettors of misdemeanors. Henry Ostman, Jr., and William Ostman are not charged as principals in the misdemeanor count; but as aiders and abettors. At common law there is no such offense as aiding and abetting a misdemeanor. 1 Whart. (10 Ed.), secs. 223 and 23a. (7) The eleventh instruction did not present the law of self-defense as to Henry Ostman, Sr., properly to the jury. The last part of the instruction destroys it. It gauges too nicely the proper quantum of force necessary to repel the assault. State v. Hickmann, 95 Mo. 328; State v. Palmer, 88 Mo. 572; State v. Smith, 125 Mo. 2, 8.
Theodore C. Bruere for respondent.
(1) The motion to require the prosecuting attorney to elect on which count he would proceed was properly sustained. State v. Grant, 144 Mo. 57; State v. Pitts, 58 Mo. 556; State v. Burk, 89 Mo. 635; State v. Melton, 102 Mo. 683. (2) Under an indictment for assault with intent to kill or for a felonious assault the defendant may be convicted for assault and battery or common assault. State v. Wilson, vol. 103, No. 1, p. 110; State v. Schloss, 93 Mo. 361; sec. 2370, R. S. 1899; sec. 2369, R. S. 1899; State v. Rambo, 95 Mo. 463; State v. Webster, 77 Mo. 566. (3) All distinction between principals, and principals in the second degree have been abolished. All who are present aiding and abetting those who actually commit the offense are principals. If two persons are charged as principals--one as the immediate perpetrator of the crime, and the other as aiding and abetting, it is immaterial which of them is charged as having inflicted the wound or struck the blow, inasmuch as the law imputes the injury given by one as the act of the other. State v. Dalton, 27 Mo. 13; State v. Walker, 98 Mo. 95; State v. Nelson, 98 Mo. 414; State v. Orrick, 106 Mo. 111; State v. Johnson, 111 Mo. 578; State v. Brown, 104 Mo. 365; State v. Hermann, 117 Mo. 629.
The defendants were informed against in the circuit court for felonious assault. Having pleaded not guilty, they were tried by a jury and convicted of the offense of common assault. The punishment of the defendant, Henry Ostman, Sr., was fixed at a fine of one hundred dollars, and that of his two sons, Henry Ostman, Jr., and William Ostman, at a fine of fifty dollars each. From this judgment all of the defendants prosecute an appeal.
The first argument advanced for a reversal of the judgment assumes that the information is in four counts and that the first and third counts thereof, those charging the principal offense, are wholly insufficient for the reason they fail to conclude by employing the words, "against the peace and dignity of the State," as required by the Constitution. It is argued that the first count charges the principal assault to have been made by William Ostman, and that the second charges Henry Ostman, Sr., and Henry Ostman, Jr., with aiding and abetting the same. This being true, it is said the judgment of conviction thereon cannot be sustained for the reason that if the first count against William Ostman is fatally defective in that it is not concluded by the words, "against the peace and dignity of the State," there is then no charge against the principal offender. And if there is no charge against the principal, then none may be sustained against the others as aiders and abettors. The identical argument relates as well to what is said to be the third and fourth counts of the indictment. Whatever may be said touching other features of the proposition advanced, it is sufficient here to reject the entire argument on the ground that it is false in an assumption of fact; that is to say, it is false in assuming the indictment to be in four counts. Upon looking into the same carefully, it appears to be in two counts only. The first paragraph of the first count charges the defendant, William Ostman, with the offense of felonious assault, and the second paragraph of the same count charges Henry Ostman, Sr., and Henry Ostman, Jr., with aiding and abetting him therein. After charging all three defendants as mentioned, the count concludes, as required by the Constitution, with the words, "against the peace and dignity of the State."
The first paragraph of the second count charges Henry Ostman, Sr., with a felonious assault and the second paragraph of the same count charges Henry Ostman, Jr., and William Ostman with aiding and abetting their father in the commission of the offense. This count also properly concludes, as is required by the Constitution, with the words, "against the peace and dignity of the State." It seems the separate paragraphs referred to have been mistaken for separate counts of the indictment. And as there were two paragraphs in each count of the indictment, they have been put forward as four separate counts thereof.
The first count charges in substance that William Ostman feloniously, willfully, on purpose and with malice aforethought, did make an assault on the body of Henry Schafer with a dangerous weapon, to-wit, a stick of wood of the length of four feet, of the diameter of three inches and of the weight of three pounds, said William Ostman did strike and wound said Schafer on the head with the intention and purpose, willfully and with...
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