State v. Schloss
| Decision Date | 19 December 1887 |
| Citation | 6 S.W. 244,93 Mo. 361 |
| Parties | The State v. Schloss, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis Criminal Court. -- Hon. G. S. Van Wagoner Judge.
Affirmed.
Martin & Fauntleroy for appellant.
(1) The indictment is fatally defective in that it does not conclude "against the peace and dignity of the state," as the constitution expressly provides it shall. Const. of Mo art. 6, sec. 38. (2) The indictment will not support a conviction for an assault with intent to kill, since it does not allege that the assault was made with intent to kill. (3) It was clearly erroneous in the court to fail to instruct in this case for a common assault, as well as for an assault with intent to kill.
B. G. Boone, Attorney General, for the state.
(1) The indictment is drawn upon section 1262, Revised Statutes, formerly section 29, General Statutes, and contains all the formal and necessary allegations to properly charge an assault with intent to kill. State v. Burk, 89 Mo. 637; State v. Mathews, 88 Mo. 123; State v. Jones, 86 Mo. 623. (2) No objections were made or exceptions saved to the admission or exclusion of evidence, and the testimony will not be reviewed. State v. Burk, supra, and cas. cit.; State v. Mills, 88 Mo. 417. (3) The instructions properly declare the law. The first is the formal instruction under the indictment, and clearly defines the crime under section 1262, Revised Statutes. State v. Jones, 86 Mo. 623. The second is drawn under section 1263, Revised Statutes, defining a felonious assault without "malice aforethought," and is correct. State v. Sears, 86 Mo. 169; State v. Mathews, supra. The third, fourth, fifth, and sixth, define the technical words constituting the elements of the crime charged, and are proper definitions. The seventh defines the authority of Hodnett, as deputy constable, in serving the writ of replevin, viz., "that he had the right, as such officer, to use such force and violence as was necessary, but no more than was necessary, to accomplish the execution of said writ." State v. McNally, 87 Mo. 659. The eighth properly defines the doctrine of self-defence under the evidence. State v. Jones, 78 Mo. 278; State v. Thomas, 78 Mo. 339. The ninth properly declares the law as to vile or abusive language, not justifying an assault. State v. Griffin, 87 Mo. 608. The tenth is as to the credibility of defendant's testimony. State v. Cook, 84 Mo. 40. The eleventh is as to the evidence tending to establish good character, and is in the form heretofore approved by this court. State v. Kilgore, 70 Mo. 547; State v. Swain, 68 Mo. 605. The twelfth is as to the presumption of innocence attending the defendant throughout the trial, and has, in like words, received the sanction of this court. State v. Jones, 86 Mo. 623. The thirteenth is the usual instruction in regard to the jury's province as to the credibility of witnesses. State v. Jones, supra. (4) Although indicted under section 1262, Revised Statutes, for assault with intent to kill, a conviction for a lesser offence was not improper. R. S., sec. 1655; State v. Burk, 89 Mo. 635.
The defendant was indicted under section 1262, Revised Statutes, 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 one hundred dollars.
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 six, 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. 254, 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. Zarresseller 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 offence to have been contrary to the statute, and this, too, though the offence may have been created, or the punishment declared by statute. R. S., sec. 1821. 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. Waters, 1 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, on 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 Bishop Crim. Proc., secs. 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-defence. Some objections are made to these instructions, but we find nothing in them which needs any special consideration. There is an objection made here that the court failed to give any instruction as to a simple...
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