State v. Smith

• Decision Date: 16 July 1920
• Docket Number: No. 21942.,21942.
• Citation: 284 Mo. 168,223 S.W. 749
• Parties: STATE v. SMITH
• Court: Missouri Supreme Court

223 S.W. 749

284 Mo. 168

STATE v. SMITH

No. 21942.

Supreme Court of Missouri, Division No. 2.

July 16, 1920.

Error to Circuit Court, Howell County, E. P. Dorris, Judge.

Ed Smith was convicted of assault with intent to kill, and he brings error. Affirmed.

On November 27, 1918, the prosecuting attorney of Howell county, Mo., filed, in the circuit court of said county, an information, duly verified, which, omitting caption, etc., reads as follows:

"Will H. D. Green, prosecuting attorney within and for the county of Howell, in the state of Missouri, informs the court that one Ed Smith on the 14th day of November, A. D. 1918, at the said county of Howell, did then and there, upon the body of one H. E. O'Brien then and there being, feloniously and willfully, with a deadly weapon, to wit, a certain pitch-fork of the length of six feet and quired to find the existence of such fiduciary of the weight of two pounds, which the said Ed Smith then and there had and held in his hands, did then and there make an assault with the intent him, the said H. E. O'Brien, then and there to kill, and the prosecuting attorney aforesaid, upon his oath aforesaid, further the existence of a fiduciary or confidential then and there feloniously was present aiding, abeting, and assisting the said Ed Smith the felony and assault aforesaid feloniously to do and commit, against the peace and dignity of the state "Will H. D. Green, Prosecuting Attorney."

On December 4, 1918, defendant was arraigned and entered his plea of not guilty. On the date last named, a trial was had before a jury, and the latter returned into court a verdict of guilty, and assessed a fine of $100 against defendant. On December 9, 1918, judgment was entered upon the verdict aforesaid. On the same day, defendant thereafter filed a motion in arrest of judgment. Both motions were overruled, and an appeal was granted him to this court, but the same was never perfected.

On December 5, 1919, defendant made a written application to this court for a writ of error, and alleged therein that a charge of assault with intent to kill had been lodged against him in the circuit court. Said application also contains the following:

"And the said Ed Smith says that the crime with which he was wrongfully convicted of is a felony and within the jurisdiction of the Supreme Court of Missouri."

He presented, in support of said application for writ of error, a transcript of the circuit court record, containing the information, the instructions, the verdict of the jury, and the judgment rendered against him. Thereupon a writ of error was issued, and the cause was made returnable to the April term of this court.

Such other matters as may be deemed of importance will be considered later.

Frank W. McAllister, Atty. Gen., and H. P. Ragland, Asst. Atty. Gen., for the State.

BAILEY, C. (after stating the facts as above).

1. The main question to be determined by this court is whether or not we

have jurisdiction of the cause. If the jury simply returned a verdict convicting defendant of a common assault, as provided in section 4484, R. S. 1909, this court has no jurisdiction over the cause. If, on the other hand, the verdict returned by the jury convicted defendant of a felony, as provided by section 4482, R. S. 1909, then the cause is within the jurisdiction of this court.

It is manifest from the information and instructions given at the trial that the case was prosecuted under section 4482, R. S. 1909, which reads as follows:

"Every person who shall be convicted of an assault with intent to kill, or to do great bodily harm, or to commit any robbery, rape, burglary, manslaughter or other felony, the punishment for which assault is not hereinbefore prescribed, shall be punished by imprisonment in the penitentiary not exceeding five years, or in the county jail not less than six months, or by a fine not less than one hundred dollars and imprisonment in the county jail not less than three months, or by a fine not less than one hundred dollars."

In passing upon this question, it is necessary to consider the information heretofore set out, as well as certain language contained in instruction 2, given by the trial court. The latter, in said instruction, told the jury, if they found defendant had feloniously assaulted O'Brien with a deadly weapon, etc., "then you will find the defendant guilty of assault with intent to kill or do some great bodily harm, and assess his punishment at imprisonment in the state penitentiary for a term of not less than two years nor more than five years, or by imprisonment in the county jail not less than six months nor more than one year, or by imprisonment in the county jail not less than three months nor more than one year, and a fine of one hundred dollars or by a fine alone of not less than one hundred dollars." It is perfectly clear, from this instruction, that the jury was not authorized to fine defendant in any sum less than $100, as provided in said section 4482. Unless, therefore, the jury should" be considered as disregarding the instruction of the court, they could not have returned a verdict as for a common assault, in view of the language used in section 4482, which states the maximum amount at which the defendant could have been fined, as $100, and the jury could not have returned a verdict thereunder for less than said sum. It is therefore manifest that if the jury, by their verdict, intended to follow the instruction of the court, they must have convicted defendant of a felony under section 4482, supra, although the punishment inflicted was only a fine of $100 and costs. State v. Melton, 117 Mo. loc. cit. 619, 620, 23 S. W. 889; State v. Greenspan, 137 Mo. loc. cit. 150, 38 S. W. 582; State ex rel. v. Foster, 187 Mo. 590, 86 S. W. 245; State v. Woodson, 248 Mo. loc. cit. 707, 154 S. W. 705; State v. Underwood, 254 Mo. loc. cit. 470, 471, 162 S. W. 184; State v. Siegel, 265 Mo. 239, 177 S. W. loc. cit. 354.

The verdict of the jury, as it appears printed in the transcript on file herein, reads as follows:

"State of Missouri, Plaintiff, v. Ed Smith and Earl Tyrrel, Defendants. Felonious Assault. We, the jury, find the defendant Ed Smith guilty of assault with intent to do bodily harm and assess his punishment at one hundred dollars. J. A. Murphy, Foreman."

It not only appears from the information and instruction 2, supra, that defendant was being prosecuted for a felony under section 4482, R. S. 1909, but the verdict itself recites on its face, as above indicated, that defendant was being convicted of a felonious assault.

In passing upon the form of verdicts in cases of this character, we held in State v. Bohle, 182 Mo. loc. cit. 68, 81 S. W. 181, as follows:

"The uniform expressions of all the courts is that the verdict of a jury is not to be tested by the technical rules of construction which are applicable to pleadings; but...