State v. Sillbaugh

• Citation: 157 S.W. 352,250 Mo. 308
• Parties: THE STATE v. A. S. SILLBAUGH, Appellant
• Decision Date: 20 May 1913
• Court: United States State Supreme Court of Missouri

157 S.W. 352

250 Mo. 308

THE STATE v. A. S. SILLBAUGH, Appellant

Supreme Court of Missouri, Second Division

May 20, 1913

Appeal from Douglas Circuit Court. -- Hon. John T. Moore, Judge.

Affirmed.

A. H Buchanan for appellant.

The alleged offense in this case is a felony, and all felonies must be charged to have been feloniously done. In this case the word "feloniously" nowhere appeared in the information till the prosecuting attorney was permitted to insert the word "feloniously," and that after the jury were impaneled. Defendant's motion in arrest should have been sustained. State v. Murdock, 9 Mo. 739; State v. Gilbert, 24 Mo. 380; State v Deffenbacher, 51 Mo. 26; State v. McGrath, 228 Mo. 413; State v. Buchfelder, 231 Mo. 55. Until this information was amended there was no crime charged against the defendant, and the State is not permitted to wait until the jury is impaneled and then for the first time present a legal charge against him. Up to the time this amendment was made defendant had no notice of any legal charge against him. This amendment is not a matter of form, but one of substance and is the very essence of the charge, and it comes too late. R.S. 1909, sec. 5061; Constitution of Missouri, art. 2, sec. 22; State v. Coleman, 186 Mo. 151; Pozzini v. State, 126 P. 1040. The court misapplied the law and facts in this case. In instruction 5 the court singled out the question of malice and made special comment on the feeling of defendant toward the owner of the property and the animal, and particularly called their attention to the fact that it was not necessary for defendant to have malice toward either the owner or animal, and while that is true as an abstract rule of law, it is not for the court to direct the attention of the jury to that matter, specially. R.S. 1909, sec. 5244; State v. Grugin, 147 Mo. 39. But the court committed the most fatal error going to the merits of the case in giving instruction 9. The question of malice and criminal intent, which is the foundation of this class of cases, was ignored. In instruction 9 the right of defendant was limited to the narrow ground of necessity. Is a man to be adjudged a criminal if, perchance, he should wound stock, excluding them from his premises, for the mere reason it had not become a matter of absolute necessity? No guide is given the jury as to what constituted such necessity. The element of malice and criminal intent is lost sight of. Malice is the very bottom of this charge, and no felony can be committed without a criminal intent. 1 Bishop's New Criminal Law, secs. 206, 287; State v. Fritchler, 54 Mo. 424; State v. Cunningham, 154 Mo. 161.

John T. Barker, Attorney-General, and Stephen K. Owen for the State.

(1) The court when requested properly gave permission to the prosecuting attorney to insert the word "feloniously" in the information before the trial. State v. Darling, 216 Mo. 450; State v. Emerson, 188 Mo. 412; State v. Dargatz, 244 Mo. 218. (2) The instructions given cover every issue in the case and were as favorable to the defendant as he could ask under the evidence.

WALKER, J. Brown, P. J., concurs; Faris, J., concurs in result only.

OPINION

WALKER, J.

Defendant was charged in an information filed by the prosecuting attorney of Douglas county with maliciously shooting and wounding hogs as denounced in section 4627, Revised Statutes 1909. Before the trial, the prosecuting attorney was permitted to amend the information by the insertion therein of the word "feloniously." The defendant was tried before a jury, found guilty and his punishment assessed at a fine of fifty dollars. After the necessary formal procedure, he appeals to this court.

Briefly, the facts are that certain hogs belonging to the prosecuting witness, named Walker, a neighbor of defendant's, had been getting into the latter's cornfield for several months and destroying his corn. The prosecuting witness and his wife heard shots fired in defendant's field in November, 1911, and went to the field and asked defendant if he had seen the hogs and he said he had not. A search resulted in the finding of two of the hogs in a shock of the defendant's corn, wounded and bleeding. Defendant on the witness stand testified that two bunches of Walker's hogs had been getting into defendant's field at different times, and although Walker had been at defendant's house frequently hunting the hogs, he had not offered to help him get them up; that when defendant shot the hogs in November, 1911, it was for the purpose of scaring them and running them out of the field. Defendant says he did not know that the two wounded hogs were in the corn shock when Walker and his wife came to the field immediately after the shots were fired. In reply to an inquiry made by his counsel as to why he did not tell Walker and his wife where the hogs were when they came to the field, he said: "Well, they had given me so much trouble, I thought they would give me more trouble."

Defendant was permitted to testify fully in regard to every phase of the case, even to state his reasons for the commission of the offense.

There was much testimony as to the condition of defendant's fence around the cornfield, not necessary to be detailed, because of its irrelevancy.

The court instructed the jury on the presumption arising from proof of good character; as to what constitutes reasonable doubt; the weight and credit to be given to defendant's testimony; what the jury must find to authorize a conviction; that malice may be inferred if the act was shown to have been wrongfully and intentionally committed; what is meant by "malice;" that if the shooting was done without malice to the animal or owner, then you should acquit the defendant, and defining "wilfully."

Defendant assigns as error the amendment of the information and the giving and refusing of certain instructions.

I. Defendant contends that error was committed in permitting the prosecuting attorney, before the trial, to amend the information by the insertion therein of the word "feloniously." The statute (Sec. 5061, R.S. 1909) provides that "any affidavit or information may be amended in matter of form or substance at any time by leave of court before the trial, and on the trial as to all matters of form and variance, at the discretion of the court, when the same can be done without prejudice to the substantial rights of the defendant, on the merits," etc.

At common law the officer of the Crown could elect to file an entirely new information or, by leave of the court, amend the information already filed, by interlineation or erasure. This court has held that an "information," as used in our Constitution, means the common law information. [State v. Kyle, 166 Mo. 287, 65 S.W. 763.] The provisions of the statute, therefore, are but declaratory of the common law and are ample to permit the amendment complained of, when as shown by the record, it was made by leave of the court and before the trial.

This conclusion is supported by State v. Vinso, 171 Mo. 576, 71 S.W. 1034, and State v. Pyscher, 179 Mo. 140, 77 S.W. 836, in which the amendment of informations is elaborately and learnedly discussed.

II. The correctness of the second...