State v. Wilson

• Decision Date: 28 May 1907
• Citation: 103 S.W. 110,126 Mo.App. 302
• Parties: STATE OF MISSOURI, Respondent, v. WILSON, Appellant
• Court: Missouri Court of Appeals

103 S.W. 110

126 Mo.App. 302

STATE OF MISSOURI, Respondent, v. WILSON, Appellant

Court of Appeals of Missouri, St. Louis

May 28, 1907

Appeal from St. Louis City Circuit Court.--Hon. Matthew G. Reynolds Judge.

AFFIRMED.

STATEMENT.--Among the instructions given by the court were the two following:

"The court instructs you to consider first the charge of assault with intent to kill with malice aforethought, and under the second count of the information, withdrawing from your consideration the first count.

"On the second count the court instructs you as follows:

"First. If upon consideration of all the evidence in the case and in the light of the court's instructions, you find and believe from the evidence that at the city of St. Louis and State of Missouri, on or about the 8th day of November, 1904 or at any time within three years next before the filing of the information herein, the defendant, Joseph Wilson, made an assault upon the prosecuting witness, Oliver J. Beck, with a revolver pistol loaded with gunpowder and leaden balls, and did point said revolver-pistol so loaded as aforesaid (if you find it was so loaded) at a vital part of the body of the said Oliver J. Beck, and within shooting distance, and that said revolver-pistol was a deadly weapon likely as used to produce death or great bodily harm, and if he did so wilfully, on purpose and with malice aforethought, with the intent to kill him, the said Oliver J. Beck, you will find the defendant guilty of an assault with intent to kill with malice aforethought, as charged in the second count, and assess his punishment at imprisonment in the penitentiary for a term not less than two nor more than ten years.

"The terms "wilfully" and "on purpose" mean intentionally and not by accident.

"The term 'malice aforethought' as used in the information and in these instructions, means that one intentionally does what he knows to be a wrongful act, and that he has thought of it and determined to do it for any length of time beforehand, however short.

"You are further instructed that if one person intentionally uses upon another a deadly weapon (that is, a weapon which, as used, is likely to produce death) at a vital part of the body, and in such a manner that death is likely to result, he is presumed by such to have intended to kill, and if he so uses such weapon without just cause or provocation, he is presumed to have acted with malice aforethought. Whether the said revolver pistol was a deadly weapon and whether such weapon was used in such a manner and with such intent by the defendant on the occasion under consideration, are matters to be determined by you from all the facts and circumstances in the case.

"Third. If you find from the evidence that such assault was made by defendant, but that he had no intention to kill or do great bodily harm, then you will find him guilty of common assault and assess his punishment at a fine not to exceed one hundred dollars, or by imprisonment in the city jail not exceeding six months, or by both such fine and imprisonment."

Judgment affirmed.

Morton Jourdan and Hiram N. Moore for appellant.

The instructions are erroneous, confusing and misleading. First instruction numbered 1 tells the jury if they find defendant pointed the pistol "at a vital part of the body of said Oliver J. Beck," and that at the time defendant was "within shooting distance of Beck." Thus the court by instruction, attempted to supply the defect in the information, and, in so doing, instructed on material facts not charged in the information--in other words, the instruction is broader than the information, and, for that reason, is bad. State v. Smith, 119 Mo. 439; State v. Powers, 130 Mo. 474, 5. The verdict is insufficient upon which to predicate a judgment. It fails to state upon which count of the information they found the defendant guilty, even though where there is a defective and a good count the verdict must specify on which count it is based. State v. Pitts, 58 Mo. 556; State v. Cassity, 49 Mo.App. 302.

Arthur N. Sager, Circuit Attorney, and Grant Gillespie, Assistant Circuit Attorney, for State.

(1) The information in this case is sufficient and the court has jurisdiction. State v. Clayton, 100 Mo. 516; State v. Temple, 194 Mo. 237; State v. Williams, 66 Mo.App. 148. (2) If there is one good count in this information it is sufficient to sustain a general verdict of guilty and a general verdict in this case is valid. State v. Jennings, 18 Mo. 435; State v. Montgomery, 28 Mo. 594; State v. Watson, 31 Mo. 361; State v. Testeman, 68 Mo. 408; State v. McCue, 39 Mo. 112; State v. Blan, 69 Mo. 317; State v. Clark, 147 Mo. 20; State v. Miller, 67 Mo. 604; State v. McDonald, 85 Mo. 539; State v. Jackson, 90 Mo. 156; State v. Noland, 111 Mo. 473; State v. Van Wye, 136 Mo. 227; State v. Schmidt, 137 Mo. 266.

OPINION

GOODE, J. (after stating the facts).

This defendant was informed against for felonious assault. He is a police officer of the city of St. Louis, as the instructions show, the evidence not having been preserved in the bill of exceptions. The information is challenged as insufficient to support the verdict, which found the defendant guilty of a common assault only, and imposed a fine of one hundred dollars and imprisonment for six months in jail. We need not notice the first count of the information, because it was withdrawn from the consideration of the jury. There are two other counts of which the second is for assault with intent to kill and charges that defendant feloniously, wilfully, on purpose, and of malice aforethought, with a deadly weapon, to-wit; a revolver-pistol, loaded with gunpowder and leaden balls, made an assault on Oliver J. Beck, by pointing said revolver-pistol at the body of said Beck in an angry, violent and threatening manner, with the intent the said Oliver J Beck, wilfully, on purpose and of malice aforethought to kill, contrary to the statute in such case made and provided and against the peace and dignity of the State. The third count is in the same form, except that instead of charging the assault, in manner and form stated, was with the intent to kill Beck, it is charged that his life was endangered by the assault. The second count of the information is excepted to because it does not allege the defendant, when the assault was committed, was within such distance of Beck as either to endanger the latter's life, or maim, wound or disfigure him. The information follows the language of the statute, is not materially different from one...