State v. Rizor

• Decision Date: 09 October 1944
• Docket Number: 39022
• Citation: 182 S.W.2d 525,353 Mo. 368
• Parties: State v. Kenneth Rizor, Appellant
• Court: Missouri Supreme Court

182 S.W.2d 525

353 Mo. 368

State v. Kenneth Rizor, Appellant

No. 39022

Supreme Court of Missouri

October 9, 1944

Appeal from Barton Circuit Court; Hon. Thomas W. Martin Judge.

Affirmed.

Silvers & Silvers for appellant.

(1) The information is: Either so indefinite and repugnant as to the means employed to effect death, as to be wholly invalid. State v. Reakey, 62 Mo. 40; State v. Jones, 20 Mo. 58. (2) or amounts to a charge of killing with a blunt instrument. And, if the latter, it is unsupported by substantial evidence. The mere opinion of a doctor that a would could have been inflicted by a weapon is not sufficient to support such allegation in the face of actual evidence none was used. State v. Lloyd, 337 Mo. 990, 87 S.W.2d 418. (3) The information, if it charges any means employed, charges use of a blunt instrument. This will not support conviction for a killing with the fist. The means alleged must be proved. State v. Reed, 154 Mo. 122 55 S.W. 278. (4) The court reserves the right to rectify a verdict inflicting excessive punishment. State v Johnson, 192 S.W. 441. (5) The court will interfere when it appears the verdict is evidently prompted by prejudice, passion or partiality, and not the result of the calmer weighing of the facts in evidence, which should always characterize the deliberations of a jury. State v. Prendible, 165 Mo. 329, 65 S.W. 559; State v. Primm, 98 Mo. 368, 11 S.W. 732.

Roy McKittrick, Attorney General, and Covell R. Hewitt, Assistant Attorney General, for respondent.

(1) The information in this case charges murder in the second degree and is sufficient. State v. Myers, 198 Mo. 225, 94 S.W. 242; Kelley, Criminal Law and Practice (3rd Ed.), sec. 472, p. 415; State v. Mitchell, 252 S.W. 383; State v. Carter, 345 Mo. 74, 131 S.W.2d 546; State v. Clark, 111 S.W.2d 101. (2) The verdict of the jury is in approved form and assessed a penalty in accordance with the charge in the information. The verdict in this case was in the correct and proper form. State v. Mitchell, 252 S.W. 383. (3) Assignment of error in paragraph 1 of motion for new trial is insufficient. Sec. 4125, R.S. 1939; State v. Adams, 323 Mo. 729, 19 S.W.2d 671; State v. Ford, 346 Mo. 882, 143 S.W.2d 289. (4) It has been abandoned by appellant. Sec. 4125, R.S. 1939; State v. Huett, 340 Mo. 934, 104 S.W.2d 252; State v. Goffstein, 342 Mo. 499, 116 S.W.2d 65; State v. West, 346 Mo. 563, 142 S.W.2d 468; West Mo. Digest Key No. 1178. (5) This assignment has been abandoned by the appellant in his brief and, therefore, will not be considered by this court. State v. Barrett, 240 Mo. 161, 144 S.W. 485; State v. Greaves, 243 Mo. 540, 147 S.W. 973. (6) This assignment has been abandoned by appellant in his brief. State v. Nueslein, 25 Mo. 111. (7) This assignment is not sufficient under the statute and opinions of this court. Sec. 4125, R.S. 1939; Cases cited under Points (1) and (2). (8) The court did not err in giving an instruction on murder in the second degree under the facts and circumstances in this case. State v. John, 172 Mo. 220, 72 S.W. 525; State v. Hyland, 144 Mo. 302, 46 S.W. 195; State v. Clark, 111 S.W.2d 101; State v. Carter, 345 Mo. 74, 131 S.W.2d 546. (9) An assignment which complains of passion and prejudice on the part of the jury, not substantiated by the record, is unavailing on appeal. State v. Preslar, 318 Mo. 679, 300 S.W. 687; State v. Jenkins, 327 Mo. 326, 37 S.W.2d 433; State v. Wester, 18 S.W.2d 28.

OPINION

Ellison, J.

The appellant was convicted by a jury of murder in the second degree in the circuit court of Barton county on change of venue from Vernon county for striking and killing Earl Bliss. His punishment was assessed at 30 years imprisonment in the penitentiary. Four assignments of error are made in his brief. We take these up in order.

The first assignment contends the prosecuting attorney's information was fatally defective in charging duplicitously and repugnantly that appellant killed the deceased: either with his hands, or with his fists, or with a blunt instrument; or else with the blunt instrument alone. Actually, this charge was made in the conjunctive, not the disjunctive, the information alleging the appellant assaulted, struck, beat and mortally wounded the deceased upon the head and body with his "fists and hands and a certain blunt instrument, a further description of said blunt instrument is to this affiant unknown, had and held in his hands."

It was an amended information filed on the day of the trial, and the appellant went to trial without objection then or thereafter in the trial court. This latter being true, it is too late now to challenge the information unless it lacks some averment essential to the description of the crime. State v. Biven (Mo. Div. 2), 151 S.W.2d 1114, 1118(10). But it is not an essential element of murder in either degree that the killing be done with a deadly weapon, or any weapon at all: the crime may be committed with the fist. State v. Beard, 334 Mo. 909, 912(1), 68 S.W.2d 698, 700(1). And the information cannot be attacked after verdict for indefiniteness in the description of the way the crime was committed. State v. Dildine, 330 Mo. 756, 759(3), 51 S.W.2d 1, 2(3).

But further on this point. The first of the two cases cited thereon in appellant's brief is State v. Jones, 20 Mo. 58, 61. In that case the indictment charged that the defendant "did strike and thrust" the deceased "in and upon the left side of the belly, and also in and upon the right shoulder, giving to the deceased, then and there, in and upon the left side of the belly, and also in and upon the right shoulder, one mortal wound, of the breadth of three inches, and of the depth of six inches, of which mortal wound he then and there instantly died." The opinion said the words used in describing the offense were not sensible or grammatical. But the point emphasized was that the indictment charged the giving of mortal wounds both on the left side of the belly and on the right shoulder; and yet said there was only one wound. Then the opinion asked, where was that wound, which place the wound was inflicted?

The decision was bottomed on common law rules of pleading. It was decided in 1854 before the present Sec. 3952, R.S. 1939, Mo. R.S.A. sec. 3952 had been amended in 1855 by the addition to its fourth clause of the part next quoted: that no indictment shall be deemed invalid "for any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime and person charged;" . . . provided, that nothing herein shall be so construed as to render valid any indictment which does not fully inform the defendant of the offense of which he stands charged. This fact was noted in State v. Edmundson, 64 Mo. 398, 401, decided in 1877, and that decision limited the doctrine of the Jones case far enough to make it conform to the new statute. See, more recently, State v. Kenyon, 343 Mo. 1168, 1179(5), 126 S.W.2d 245, 251 (8).

The other case cited by appellant is State v. Reakey, 62 Mo. 40, 42. It was decided in 1876, after Sec. 3952 had been amended as just stated. But the opinion did not mention it. The indictment there alleged the defendant killed his wife "with a stick or cudgel of some kind, unknown to the (grand) jurors, and with his opened right hand, the same being deadly weapons, which the defendant then and there held in his hand or hands." Thereafter the indictment alleged the defendant struck the deceased with said stick or cudgel of a kind unknown to the grand jurors on the right side of the forehead; and choked her throat with his right hand. The opinion severely criticized the indictment for being illogically and inartifically drawn, pointing out it alleged in effect that he held "his opened right hand in his right hand"; and further said the allegation as to the choking of the deceased's throat should have been in a separate count, and that it was not alleged that act was committed wilfully, deliberately and premeditatedly.

The Reakey decision further held "A clear substantive charge, constituting the offense, is as necessary now as it ever was." Within reason that is true. But it has been held many times since that an indictment or information may charge a murder was committed by different means or weapons, and be sustained by proof of either. ^[1] In view of these decisions we hold the information here was not fatally defective in charging that the murder was committed with appellant's fists and hands and a blunt instrument of a description unknown to the prosecutor. Whichever of these were used, it was all a part of the same fatal assault. That is the though underlying the authorities. We are not deciding how far the rule extends, but are merely applying it to the facts here, which will presently be stated more fully.

Neither can we agree, as contended in appellant's second and third assignments, that the information amounted to a charge that the murder was committed with an unknown blunt instrument; and that consequently the charge must fail if the evidence did not show the death was caused in that manner, but rather indicated it resulted from blows with the fists. So far as the information is concerned, a conviction of the crime could be based on evidence that the death was caused in any one of the three ways alleged. On that point appellant cites State v. Reed, 154 Mo. 122, 133, 55 S.W. 278, 282(6). We are unable to find the case has ever been referred to since on the same question. The indictment there charged the homicide had been committed by a direct blow with an iron pick. But part of the witnesses testified that just prior to that, in the same altercation, the defendant had struck the deceased with his fist, causing him to fall and strike his...