State v. Williams

• Decision Date: 21 November 1905
• Citation: 90 S.W. 448,191 Mo. 205
• Parties: STATE v. WILLIAMS.
• Court: Missouri Supreme Court

90 S.W. 448

191 Mo. 205

STATE v. WILLIAMS.

Supreme Court of Missouri, Division No. 2.

November 21, 1905.

1. HOMICIDE — EVIDENCE — ASSAULT WITH INTENT TO KILL.

Evidence held sufficient to sustain a conviction of assault with intent to kill.

2. CRIMINAL LAW — TRIAL — WEIGHT OF TESTIMONY.

It is the special province of the jury in a criminal case to weigh the testimony.

3. SAME — APPEAL — CONCLUSIVENESS OF VERDICT.

Where a verdict of conviction is supported by substantial evidence, the Supreme Court will not disturb the same on the ground of a conflict in the evidence, unless there is something to indicate that the jury's conclusion was the result of passion or prejudice.

4. CRIMINAL LAW — APPEAL — HARMLESS ERROR — RULINGS ON INFORMATION.

Under Rev. St. 1899, § 2522, providing that, if there be at any time pending against the same defendant two indictments for the same offense, the indictment first found shall be deemed to be suspended by the second indictment and shall be quashed, defendant is not prejudiced by the refusal of the court to quash the first information upon the filing of a second information for the same offense, as the force and vitality of the first is suspended, and defendant cannot be tried thereon so long as the second remains pending unquashed.

5. HOMICIDE — INFORMATION — ASSAULT WITH INTENT TO KILL.

An information charging that defendant, on or about a certain day, in a certain county of the state, then and there feloniously, etc., on purpose and of his malice aforethought, did make an attempt to kill and murder prosecuting witness, and in such attempt feloniously, etc., with a rifle gun, being a dangerous and deadly weapon, loaded, etc., did shoot him, the said prosecuting witness, in and upon the left shoulder, with the intent then and there the said prosecuting witness feloniously, etc., to kill and murder, but did fail in the perpetration of said offense, but through no fault of his, while containing some unnecessary allegations, sufficiently charged an assault with intent to kill, as defined by Rev. St. 1899, § 1847.

6. SAME.

A second count, alleging that defendant, on or about a certain day, in a certain county of the state, in and upon prosecuting witness, feloniously, etc., did then and there, on purpose and of his malice aforethought, feloniously shoot prosecuting witness in and upon the left shoulder with a certain rifle gun, loaded, etc., had and held in both his hands, with the intent then and there the said prosecuting witness on purpose, etc., feloniously to kill and murder, also sufficiently charged an assault with intent to kill.

7. SAME.

Under Rev. St. 1899, § 1847, prescribing the punishment for shooting at or stabbing another, or assaulting him with a deadly weapon with intent to kill, it is unnecessary, where an assault is made by shooting at another with a pistol, or by stabbing him with a knife, to allege in the information that the weapon is a deadly weapon.

8. INDICTMENT AND INFORMATION — ELECTION BETWEEN COUNTS.

It is not error for the court to refuse to compel an election between counts of an information relating to the same transaction and charging the same offense.

9. HOMICIDE — VERDICT — SUFFICIENCY.

A verdict, finding defendant guilty as charged in the information of felonious assault, is sufficient as a conviction of assault with intent to kill, where that offense is charged in the information.

10. CRIMINAL LAW — JUDGMENT — SUFFICIENCY.

A judgment entry, reciting that, defendant being asked to show cause why sentence should not be pronounced and failing to show cause, it is therefore adjudged that defendant be confined in the penitentiary for a period of two years, and that the sheriff shall without delay convey defendant to the penitentiary, there to be kept and dealt with according to law, and the warden of the penitentiary is required to receive and safely keep defendant until the judgment and sentence be complied with, or he be otherwise discharged by due course of law, is a sufficient judgment.

Appeal from Circuit Court, Douglas County; John T. Moore, Judge.

Levi Williams was convicted of assault with intent to kill, and appeals. Affirmed.

This cause is now before us upon an appeal by the defendant from a judgment of conviction of an assault with intent to kill in the circuit court of Douglas county, Mo. This prosecution was begun upon information filed by the prosecuting attorney of Douglas county, on the 16th day of June, 1904. On the 13th day of September, 1904, the prosecuting attorney filed another information charging the defendant, in two counts, with felonious assault, by shooting William Trammell with a rifle. At the September term, 1904, the cause was continued until the March term, 1905, at which term, after unsuccessful motion to quash the first information, and after the demurrer to the first and second counts of the second information had been overruled, the defendant pleaded not guilty. The charge as made in the second information, omitting caption, was as follows: "Fred Stewart, prosecuting attorney for the county of Douglas, in the state of Missouri, upon his oath informs the court that Levi Williams, on or about the 9th day of June, 1904, in the said county of Douglas and state of Missouri, then and there feloniously, willfully, premeditatedly, deliberately, on purpose and of his malice aforethought, did make an attempt to kill and murder one William Trammell then and there being, and in said attempt and toward the commission of said offense and felony he, the said Levi Williams, then and there feloniously, willfully, premeditatedly, deliberately, on purpose and of his malice aforethought, with a rifle gun, being a dangerous and deadly weapon loaded with gunpowder and leaden ball which he, the said Levi Williams, then and there had and held, did shoot him, the said William Trammell, in and upon the left shoulder of him, the said William Trammell, with the intent then and there him, the said William Trammell, feloniously, willfully, premeditatedly, deliberately on purpose and of his malice aforethought to kill and murder, but the said Levi Williams did then and there fail in the perpetration of said offense but through no fault of his, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the state. And the prosecuting attorney aforesaid upon his oath aforesaid does further inform the court that Levi Williams on or about the 9th day of June, 1904, in the county of Douglas and state of Missouri, in and upon one William Trammell, feloniously and on purpose and of his malice aforethought did make an assault, and did then and there on purpose and of his malice aforethought feloniously shoot him, the said William Trammell, in and upon the left shoulder of him, the said William Trammell, with a certain rifle gun loaded with gunpowder and leaden balls which he, the said Levi Williams, then and there had and held in both his hands with the intent then and there him, the said William Trammell, on purpose and of his malice aforethought feloniously to kill and murder against the peace and dignity of the state. Fred Stewart, Prosecuting Attorney" — which information was duly verified in accordance with the provisions of the statute. On the 29th day of March, 1905, the defendant filed a motion to quash the first information, which was filed June 16, 1904, which motion was by the court overruled. On the 30th day of March, 1905, there was filed a demurrer to the second information, which was filed September 13, 1904. The grounds alleged in the demurrer to the second information were as follows: "(1) Said count fails to charge any offense under the statutes of this state of the common law. (2) Defendant demurs to the second count, and as grounds of demurrer to said count says that said count fails to charge that the assault was made with the intent to kill." The demurrer interposed by the defendant was overruled...