State v. Shelton
| Decision Date | 31 December 1924 |
| Docket Number | No. 25745,25745 |
| Citation | 267 S.W. 938 |
| Parties | STATE, v. SHELTON. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Christian County; Fred Stewart, Judge.
Frank Shelton was convicted of felonious assault without malice, and he appeals. Reversed and remanded.
G. Purd Hays, of Ozark, and Roscoe O. Patterson, of Springfield, for appellant. Jesse W. Barrett, Atty. Gen., and William Vandeventer, Sp. Asst. Atty. Gen., for the State.
Statement.
On December 29, 1923, a verified information was filed by the prosecuting attorney of Christian county, Mo., in the circuit court of said county, which, omitting caption and verification, reads as follows:
Defendant was arraigned, entered a plea of not guilty, the case was tried before a jury, and on February 1, 1924, the following verdict was returned :
Appellant filed motions for a new trial and in arrest of judgment. Both motions were overruled, judgment rendered, and an appeal granted defendant to this court.
Counsel for appellant have made no statement of the facts, and have simply challenged the sufficiency of the information, in their brief. Counsel for respondent have made a fair and satisfactory statement of the case, which we adopt, as follows :
The state's evidence showed that the prosecuting witness, Britton, had been living upon appellant's farm during the summer of 1923; that Britton and his wife separated and left their furniture in the house on appellant's premises, said furniture being valued at about $50. It seems that the house burned while unoccupied, and that in order to collect the insurance it was necessary for appellant to get an affidavit from this tenant, Mr. Britton, that he was occupying the premises and had his furniture therein. The appellant interviewed Mr. Britton and obtained the necessary affidavit after promising him to pay him $50 out of the insurance money. By using the affidavit thus procured, appellant secured his insurance, but refused to pay Britton the $50 as agreed. It seems that Britton had asked him on several occasions for the money, and appellant admitted the first time or two that he owed it, but later denied any liability. The last time he asked appellant for the money, preceding the day of the difficulty, was in the town of Republic, where appellant and Britton engaged in some verbal controversy. On the 14th day of December, 1923, there was a public sale at Republic, and both of these parties attended. The sale was nearly over, and appellant had started to leave, when Britton overtook him and again asked him for his $50. Appellant turned around and slipped his hands out of his pockets and behind him, opening his knife at the same time. Britton said to appellant, "You know that is an honest debt, and I want my money." Appellant drew back like he was going to hit Britton, who threw up his hands, and appellant struck, hitting Britton across the throat. He then struck Britton several times more with the knife, inflicting upon him several wounds. The first one was across the throat. Another was along the shoulder, just through the skin, not very deep. Another was in the right breast, much deeper and about an inch in length. The one on the throat was about five inches long, exposing the windpipe and being very near the jugular vein, being only about one-fourth to three-eighths of an inch from it, the severing of which would have meant death in a very short time. The wound on the shoulder and part of the back and arm was about fourteen inches long. After Britton had been cut, he seized a piece of wood, termed a "wagon standard," threw it at appellant, missing him. He threw the second one; some of the testimony showing that it hit appellant, and some that it did not. By this time appellant had obtained the first club thrown at him and was coming at Britton with the club in his right hand and his knife in the left hand. Whereupon Britton hit him again.
During the fight appellant asked Britton to not hit him, and Britton told him that he would not if he would lay down his knife. The knife was finally knocked from appellant's hand and the club taken away from him. Britton was unarmed save for the club during the entire controversy. Thirty-four stitches were required to sew up the wounds inflicted by the knife. Britton denied having any knucks during the quarrel with appellant at Republic' or at the sale, and also denied that he had made threats the day of the sale that he would collect his money or "whip it out of his hide."
The evidence on the part of appellant tended to show that Britton had taken hold of Shelton before he had offered any resistance; that when he took hold of appellant he told him that he was going to have his money or beat it out of appellant's hide; when he grabbed hold of appellant, appellant raked him with a knife; that Britton knocked appellant down or nearly so, with the wagon standard, in fact, that appellant did was done in the necessary defense of his person. Appellant testified that he had been sick with typhoid fever prior to this time and was not in good physical condition. He denied ever promising to pay Britton the $50, but admitted that Britton had made the affidavit and he had collected his insurance. He stated that on the day he talked to Britton in Republic Britton had drawn a pair of knucks on him and that he had told Britton that he did not want to have any trouble. There was also some corroborative evidence on this point and other evidence introduced by the state tending/to impeach the corroborating evidence. There is some evidence that Britton had made threats against appellant relative to the collection of this money, saying he would take it out of his hide if he did not pay it.
The sufficiency of the information and verdict, as well as any other questions which may arise on the record, will be considered in the opinion.
"The information in this case is fatally defective for the reason that it fails to allege that the assault was made with felonious intent to kill."
Before considering the authorities relied upon in support of above contention, we deem it proper to set out sections 3262 and 3263, R. S. 1919, which read, in respect to the charge involved, as follows :
The information herein, omitting caption and verification, is heretofore set out in full and should be considered in connection with the above sections of our statute. Section 3693, R. S. 1919, provide that in cases of assault, under the circumstances therein mentioned, the jury or court trying the case may" find the defendant not guilty of the offense as charged, and find him guilty of any offense, the commission of which is necessarily included in that charged against him.
Appellant relies upon the following cases in support of his assignment: State v. Clayton, 100 Mo. 516, 13 S. W. 819, 18 Am. St. Rep. 565; State v. Doyle, 107 Mo. 36, 17 S. W. 751; State v. Davis, 121 Mo. 404, 26 S. W. 568; State v. Fairlamb, 121 Mo. 137, 25 S. W. 895; State v. Wood, 124 Mo. 412, 27 S. W. 1114; State v. Norman, 136 Mo. 1, 37 S. W. 827; State v. Bond, 191 Mo. 555, 90 S. W. 830.
In State v. Clayton, 100 Mo. loc. cit. 518, 519, 13 S. W. 819 (18 Am. St. Rep. 565) the indictment reads as follows:
"That Wm. C. Clayton, late of the county aforesaid, on, or about, the seventeenth day of June, 1886, at the county of Hickory, state aforesaid, did, upon the body of one Thos. G. Allen, then and there being, feloniously, on purpose and willfully, with a deadly weapon, to wit, a revolving pistol, loaded with gunpowder and leaden balls, which he, the said Wm. C. Clayton, then and there had and held, did, then and there, make an assault with intent, him, the said Thos. G. Allen, then and there, to kill, against the peace and dignity of the state."
The above indictment was held to be insufficient, on the ground that it failed to charge the assault was made with a felonious intent.
In State v. Baird, 271 Mo. loc. cit. 13, 195 S. W. 1012, Judge Faris, in behalf of this court, wherein all the members thereof concurred, after setting out the information which he was construing, said:
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