State v. Sweeney

• Citation: 93 Mo. 38,5 S.W. 614
• Parties: STATE v. SWEENEY.
• Decision Date: 14 November 1887
• Court: United States State Supreme Court of Missouri

5 S.W. 614

93 Mo. 38

STATE v. SWEENEY.

Supreme Court of Missouri.

November 14, 1887.

1. CRIMINAL PRACTICE — VERDICT.

At the trial of defendant for felonious wounding, the verdict was as follows: "We, the jury, find the defendant guilty, under the second count of the indictment, and assess the punishment at two years in the penitentiary." Held, a good verdict.

2. SAME — APPOINTMENT OF ATTORNEY TO PROSECUTE.

At the trial of defendant, the prosecuting attorney was engaged as his counsel, and had been so engaged before his election, and the court permitted other parties to prosecute the cause. Held that, under Rev. St. Mo. § 518, providing for the prosecution when the prosecuting attorney is engaged for the defense, it was within the discretion of the court to appoint one or more attorneys to prosecute, and, in the absence of abuse of that discretion, the supreme court would not interfere.

Appeal from circuit court, Nodaway county; HENRY S. KELLEY, Judge.

The Attorney General, for respondent. Frank Griffin, for appellant.

BRACE, J.

At the March term, 1887, of the circuit court of Nodaway county, the defendant was tried and convicted of a felonious wounding under section 1264, Rev. St. 1879. The second count of the indictment under which he was convicted is sufficient, and properly charges an offense under the provisions of said section. The evidence in the case and the instructions of the court are not preserved. The statement in the bill of exceptions in reference thereto is "that under said indictment, a regular trial was had; evidence tending to establish the allegations therein; and the venue proven to the jury; and the cause submitted to the court under proper instructions." The verdict is as follows: "We, the jury, find the defendant guilty under the second count of the indictment, and assess the punishment at two years in the penitentiary." It is contended that the verdict is insufficient and meaningless, in that it does not fix his (the defendant's) punishment; that it assessed the time and not his punishment. This is a mere quibble unworthy of serious consideration. The verdict is good enough.

It is contended that the judgment in this case should be reversed, for the reason that the circuit court permitted W. W. Ramsey and L. M. Lane, Esqs., to prosecute for the state the order of the court granting such permission, and the objections of defendant thereto as they appear in the record, as follows: "It appearing to the court that Wm. C. Ellison, prosecuting attorney, was of counsel for defendant, the Hon. W. W. Ramsey and L. M. Lane were permitted by the court to prosecute this cause. The defendant then and there, in open court, called the attention of the court to the fact that Messrs. Lane and Ramsey were employed by private parties to prosecute this cause, and defendant then and...