State v. Webster

• Decision Date: 30 April 1883
• Citation: 77 Mo. 566
• Parties: THE STATE v. WEBSTER, Appellant.
• Court: Missouri Supreme Court

77 Mo. 566

THE STATE

v.WEBSTER, Appellant.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Schuyler Circuit Court.--HON. ANDREW ELLISON, Judge.

REVERSED.

Jno. D. Smoot for appellant.

D. H. McIntyre, Attorney General, for the State.

NORTON, J.

Defendant was indicted in the Schuyler county circuit court at its March term, 1876, for a felonious assault with intent to kill. He was tried at the March term, 1878, of said court, was convicted and his punishment assessed at a fine of $100, from which judgment he has appealed to this court.

1. FEIONIOUS ASSAULT TO KILL.

In the motion for a new trial and arrest of judgment the validity of the indictment is questioned as well as the action of the court in giving and refusing instructions. Omitting the formal parts of the indictment, it alleges that Samuel Webster, with force and arms, at the county of Schuyler, and State aforesaid, upon the body of one John T. Varner, in the peace of the State then and there being, feloniously, on purpose and of his malice aforethought, with a deadly weapon, to-wit: a knife, which he, the said Samuel Webster, in his hands then and there held, did then and there make an assault, and him, the said John T. Varner, strike and wound with said knife, with the intent him, the said John T. Varner, then and there to kill, contrary to the statute in such cases made and provided, and against the peace and dignity of the State. This indictment sufficiently charges an offense under section 29, Wagner's Statutes, 449, and follows the form of an indictment founded upon section 34, Revised Statutes 1845, precisely like section 29, supra, and which was expressly approved by this court in the case of the State v. Chandler, 24 Mo. 371.

2. ____.

The only remaining question for our determination is whether defendant, who, as we have seen, was indicted for an assault made, feloniously, on purpose and with malice aforethought, could be convicted and punished as for an offense under section 32, Wagner's Statutes, 449. We have not been able to find anything in the statute in existence when this offense was committed, or in the decisions of this court in construing the above sections, which would warrant us in answering this question in the affirmative. We have been cited by the attorney general to the case of the State v. Seward, 42 Mo. 206, as authority and upholding such a conviction. All that is determined by that case is that an indictment which fails to set out the offense defined by the said 29th section, if it contains a complete and sufficient description of an offense designated in the said 32nd section,...