State v. Sears

• Decision Date: 30 April 1885
• Citation: 86 Mo. 169
• Parties: THE STATE v. SEARS, Appellant.
• Court: Missouri Supreme Court

86 Mo. 169

THE STATE

v.SEARS, Appellant.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Caldwell Circuit Court.--HON. JAMES M. DAVIS, Judge.

REVERSED.

C. S. McLaughlin for appellant.

(1) The indictment charges the defendant with a felony, if he is charged with any offence, and under the instructions of the court he was found guilty of a misdemeanor, which cannot be legally done. 1 Bishop's C. L., secs. 814, 823; State v. Hilderbrand, 5 Mo. 548; People v. Adams, 17 N. W. Rep. 226. In case of misdemeanor a prosecutor's name must be indorsed on the indictment and he is liable for all costs; one guilty of a simple assault should not be required to bear all the burdens that attend the trial of a felony. (2) A gun containing gunpowder is not a loaded gun, and pointing an unloaded gun at a person is no offence. Reg. v. James, C. & K. 530; Robinson v. State, 31 Texas, 170; McKay v. State, 44 Texas, 43; Blake v. Bornerd, 9 C. & P. 626. (3) The first and second instructions for the state were erroneous.B. G. Boone, Attorney General, for the state.

(1) The indictment is based upon section 1263, Revised Statutes, 1879. It clearly describes the offence in the language of the statute. This is all that is necessary. State v. Chumley, 67 Mo. 41. (2) It was not necessary that the prosecutor's name should be indorsed on the indictment. The defendant is charged with a felony and the indictment does not come within the provisions of section 1800, Revised Statutes. (3) The evidence was sufficient to support the verdict. State v. Epperson, 27 Mo. 255. An assault with intent to kill may be made though there is no striking or wounding. State v. McClure, 25 Mo. 338. The intent with which the assault was made is proved by the threat of defendant at the time he raised the gun to his shoulder and pointed it at Whidby. State v. Painter, 61 Mo. 84, and cases cited. (4) The instructions given on behalf of the state are more favorable to the defendant than otherwise and he cannot complain. The instructions asked on behalf of defendant, and refused by the court, did not properly declare the law nor state the facts as detailed in evidence, and were properly refused. (5) Although defendant was indicted for a felonious assault, under section 1263, Revised Statutes, his conviction for a common assault was proper and authorized by law. Sec. 1655, R. S., 1879; State v. Davidson, 73 Mo. 428. (6) The jury was authorized, under the instructions, in assessing the fine of $20.00. Sec. 1265, R. S. The indictment contained but one count and it is clear that the jury found defendant guilty of a common assault. The words “as charged in the indictment,” may be rejected as surplusage, but see State v. Matrassey, 47 Mo. 295.

HENRY, C. J.

At the October term, 1881, of the Caldwell circuit court, the following indictment against the appellant was preferred by the grand jury:

“The grand jurors, for the state of Missouri, from the body of Caldwell, having first been duly empaneled, charged and sworn upon their oaths, do present: That on the thirtieth day of June, 1881, at and within Caldwell county, one Timothy R. Sears, being then and there armed with a certain flrearm, known as rifle, which was then and there loaded with gunpowder, and was then and there a deadly weapon in his hands, in and upon one Thomas Whidby, then and there in the peace of the state being, unlawfully and feloniously did make an assault, and did point said rifle at said Thomas Whidby, and attempt to discharge and shoot the contents thereof into the body of said Thomas Whidby with intent then and there to maim and kill the said Thomas Whidby, against the peace and dignity of the state.” The defendant was convicted and his punishment assessed at a fine of twenty dollars, and he has appealed from the judgment.

The indictment is based upon section 1263 for an assault with intent to commit a felony, the maximum punishment for which is imprisonment in the penitentiary, and the minimum, a fine of one hundred dollars. It is contended that the indictment is defective, in not alleging that the charge with which the gun was loaded contained a leaden ball; that a gun charged with gunpowder is not a loaded gun. As a matter of fact, we know that a very serious injury could be inflicted with a gun so loaded, and are not prepared to assent to appellant's proposition. It is held by some authors, and has been so decided by respectable courts, that an assault may be made with an unloaded gun, known to be in that condition by the assailant, if not known to the other party; but we do not give our assent to that proposition.

The testimony was to the effect that, on the thirtieth day of June, 1881, the defendant pointed a loaded rifle at Thomas Whidby, and threatened to shoot him if he did not leave a certain field, of which he was in possession, and in which he was at work; and that defendant and Whidby were then from thirty to fifty feet apart. This was all the evidence, and defendant asked the court to declare that if the jury believed from the evidence that on account of the distance between the parties, at the time, a discharge of said rifle by defendant, loaded as charged in the indictment, could not have killed or maimed Whidby, they should acquit him. There was no evidence as to whether, with a gun so loaded, one thirty or fifty feet from another, could have killed or maimed the latter. For that reason alone, the instruction was properly refused.

The first instruction given by the court for the prosecution is erroneous. It declares that if defendant assaulted Whidby, by pointing a loaded gun at him, in a threatening manner, and cocking it within shooting distance of Whidby, the jury should find defendant guilty of a common assault. The charge in the indictment is, that he not only pointed the gun at Whidby, but attempted to shoot its contents into his body, with an intent to maim...