State v. Rambo
| Decision Date | 21 May 1888 |
| Citation | 8 S.W. 365,95 Mo. 462 |
| Parties | The State v. Rambo, Plaintiff in Error |
| Court | Missouri Supreme Court |
Appeal from Phelps Circuit Court. -- Hon. C. C. Bland, Judge.
Affirmed.
W. C Kelly for plaintiff in error.
The motion to quash the indictment and in arrest of judgment should have been sustained on the ground that nine different offences could not be charged in the same count in the indictment. Kelley's Prac. 102, 105; 42 Ind. 240; 3 Greenl. Evid. [Redf. Ed.] p. 21, sec. 22.
B. G Boone, Attorney General, for the state.
The indictment is in one count. The substance of the charge is that Charles, Elmer, Alvin, and Addis Rambo, of their malice aforethought, with guns and pistols, and with intent to kill, shot at J. W. Clark and eight other persons, who are named.
The evidence for the state shows that John P. Marlow resided in a house which he had procured of Alvin Rambo. This house and a wagon-shop, which was used by Rambo, were in the same inclosure, and not more than thirty or forty feet apart. Marlow had procured the use of the house until such time as he could erect a log house on his own land, about a half mile distant. On the day of the difficulty, the persons named in the indictment as having been shot at, and others, some twenty in all, including Walter Clark, were assisting Marlow in house-raising. Clark and the Rambos were not on friendly terms, the former having been warned to keep off the premises of Alvin Rambo. Marlow invited the men, assisting him, to his house for their dinner, and, as they were approaching the house, Alvin Rambo stepped up to the opening in the enclosure with hammer in hand, and at the same time Charles Rambo placed a gun over the fence and shot towards the crowd; but Reed hit the gun so that the shot went upwards. At the same time Clark retaliated by shooting at Charles Rambo with a pistol. Elmer Rambo had a gun which he endeavored to use, and Addis Rambo assisted, by reloading Charles' gun, which Charles fired the second time.
There is some evidence that the affray began between Alvin Rambo and Rigden, each claiming that the other made the first assault; but the weight of the evidence is, that the Rambos had determined to resist the entrance of the inclosure by Clark, and that Charles Rambo made the first assault by shooting. The defendants were all acquitted, except Charles Rambo, who was convicted and sentenced to two years imprisonment.
1. Objection was made to the indictment by motion to quash and in arrest on the ground that it charges nine different offences in one count. The law is now well settled that a man may be indicted for an assault and battery upon two or more persons in one count. 1 Russ. on Crimes [9 Ed.] 1030; Whart. Crim. Plead. and Prac. [8 Ed.] sec. 469; 1 Bish. Crim. Proc [3 Ed.] sec. 437. Where two or more persons are charged with having committed one offence jointly, they should be joined in the same indictment. R. S., sec. 1811. And they may all be charged as principals in one count. State v. Payton, 90 Mo. 220, 2 S.W. 394. It follows that two or more persons may be charged in the same indictment, and in the same count for an assault and battery upon two or more persons. It was so held in Fowler v. State, 3 Heisk. 154. In Ben v. State, 22 Ala. 9, it was held that an indictment for administering poison to three persons with intent to kill was not bad for duplicity; and in Commonwealth v. McLaughlin, 12 Cush. 615, where the defendant was indicted in two counts, one for a felonious assault upon two persons by shooting at them with intent to kill both, and the other for a common assault, it was held that defendant could be found guilty of an intent to murder both persons, and further, that if he intended to kill one, but regardless as to which, he might be convicted on a charge of assaulting both. The indictment in this case does not undertake to set out different and distinct acts on the part of the defendants, but one act in which they all participated. It is neither a legal nor a physical impossibility for the four defendants to shoot at nine persons with intent to kill all of them. The indictment is,...
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