State v. Schloss

• Decision Date: 19 December 1887
• Citation: 6 S.W. 244,93 Mo. 361
• Parties: STATE v. SCHLOSS.
• Court: Missouri Supreme Court

6 S.W. 244

93 Mo. 361

STATE v. SCHLOSS.

Supreme Court of Missouri.

December 19, 1887.

1. INDICTMENT AND INFORMATION — FORM — SURPLUSAGE.

Const. Mo. art. 6, § 38, provides that all indictments shall conclude "against the peace and dignity of the state." To an indictment so stating was added, "and contrary to the form of the statute in such cases made and provided." Held, that the latter clause was surplusage, and the indictment was good.

2. HOMICIDE — ASSAULT WITH INTENT TO KILL — INDICTMENT.

An indictment stated that defendant did feloniously, and of malice aforethought, make an assault, and then and there with a piece of iron, (describing it,) being a deadly weapon, feloniously, etc., strike, etc., one H., then and there giving him a wound, (describing it,) with the intent feloniously, etc., to kill him. Held, that this was a good indictment for assault with intent to kill.

3. SAME — TRIAL — INSTRUCTIONS AS TO SIMPLE ASSAULT.

Rev. St. Mo. 1879, §§ 1265, 1655, provide that one charged with assault with intent to kill may be convicted of assault, though but a misdemeanor. It was proven that defendant used a deadly weapon in a manner likely to produce death. The defendant claimed she acted in self-defense. Held, that there was no error in failing to instruct as to simple assault.

Appeal from St. Louis criminal court; G. S. VAN WAGONER, Judge.

Indictment for assault with intent to kill. Kate Schloss, defendant. Verdict, guilty, and appeal by defendant.

The Attorney General, for the State. Martin & Fauntleroy, for appellant.

BLACK, J.

The defendant was indicted under section 1262, Rev. St., for an assault with intent to kill William Hodnett. She was found guilty under the succeeding section, and her punishment was fixed at a fine of $100.

1. Objection is made to the indictment because it does not conclude, "against the peace and dignity of the state." The thirty-eighth section of article 6 of the constitution declares that all indictments shall thus conclude. The present indictment concludes, "against the peace and dignity of the state, and contrary to the form of the statute in such cases made and provided;" so that the real objection is that the constitutional words are followed by the words "and contrary to the form," etc. In the cases of State v. Lopez, 19 Mo. 255, and State v. Pemberton, 30 Mo. 376, neither the constitutional words, nor words of like import, were used in the concluding portion of the indictments, and hence the indictments were held to be bad. But in State v. Hays, 78 Mo. 600, the addition of the words "of Missouri" was held to furnish no valid ground of objection to the indictment. Under like constitutional provisions in other states, a literal compliance with the formula is not required; and it is generally said, redundant words, not affecting the sense, may be rejected. Zarresseler v. People, 17 Ill. 101; Anderson v. State, 5 Ark. 444; State v. Kean, 10 N. H. 347. Under our statute, an indictment will not be held bad because it fails to state the offense to have been contrary to the statute; and this, too, though the offense may have been created, or the punishment declared, by statute. Section 1821, Rev. St. The words "and contrary to the form," etc., may therefore be rejected as surplusage, and the indictment will be good; and so it has been ruled by the court of appeals in a like cause. State v. Meredith, 2 Mo. App. 7.

2. The point made, that the indictment does not allege that the assault was made with intent to kill, is not well taken. After stating that the defendant did upon Hodnett feloniously, of purpose, and of her malice aforethought, make an assault, it proceeds to state that she did then and there, with a piece of iron, (describing it,) the same being a deadly weapon, feloniously, etc., strike, cut, beat, and wound Hodnett, then and there giving him one wound, (describing the same,) with the intent feloniously, etc., to kill him, (the said Hodnett.) The indictment, it will be seen, first alleges the assault, and then proceeds to state the battery. It is not necessary, in the clause charging the assault, to say it was made with intent to kill. The intent to kill is clearly charged in the subsequent allegations, and the transaction set out is, by the very terms of the indictment, to be taken as a whole. As a battery includes an assault, there is good authority for saying that the allegation of an assault might be omitted; but, however that may be, this indictment, in the respect under consideration, comes up to the approved form. 2 Bish. Crim. Proc. §§ 57, 512; State v. Greenhalgh, 24 Mo. 373.

3. The court gave instructions as to an assault with intent to kill, both with and without malice aforethought, and upon the subject of self-defense. Some objections are made...