State v. Wood

• Decision Date: 05 November 1894
• Parties: The State v. Wood, Appellant
• Court: Missouri Supreme Court

27 S.W. 1114

124 Mo. 412

The State v. Wood, Appellant

Supreme Court of Missouri, Second Division

November 5, 1894

Appeal from Lincoln Circuit Court. -- Hon. E. M. Hughes, Judge.

Affirmed.

Wm. R Young for appellant.

(1) The indictment does not charge that the assault complained of was made with a felonious intent, nor with an intent feloniously to kill. For that reason, it is defective. State v Clayton, 100 Mo. 516; State v. Davis, 26 S.W 568; 3 Chitty's Crim. Law, p. 828; 2 Bishop's Crim. Proc., secs. 77, 651, 652, 653, 654. (2) In the approved indictments since State v. Clayton, the intent has been charged "to feloniously kill." State v. Elvins, 101 Mo. 243; State v. Doyle, 107 Mo. 36. (3) The approved indictments for assault with intent to rape or rob aver the intent to be felonious. State v. Wray, 109 Mo. 594; 2 Bishop's Crim. Proc. [2 Ed.], secs. 81, 84, 85. (4) The court erred in refusing to permit defendant to introduce evidence concerning the former difficulty on the same day. (5) The court also erred in omitting to give an additional instruction so as to permit the jury to convict the defendant, if they saw proper, under section 3490. (6) The court further erred in refusing a new trial on account of the misconduct of the jury in reaching a verdict.

R. F. Walker, Attorney General, for the state.

(1) The only question requiring serious consideration in this case is the sufficiency of the indictment against the defendant -- the position of the appellant evidently being that the indictment is fatal because of the failure to charge the felonious intent. It is, however, respectfully contended that the felonious intent is sufficiently charged under this indictment, the indictment reciting that the assault and shooting were feloniously committed; hence it became unnecessary to repeat the word feloniously immediately preceding the word intent. This contention is supported by the following cases. State v. Comfort, 5 Mo. 357; State v. Chandler, 24 Mo. 371; State v. Seward, 42 Mo. 206; State v. Webster, 77 Mo. 566; State v. Smith, 80 Mo. 516; State v. Jones, 86 Mo. 623. In State v. Webster and State v. Jones, supra, indictments are identical with the one in question and both were expressly approved by this court. In the Jones case, Sherwood, J., says: "The indictment is in all respects sufficient and conforms to the section of the statute on which it is bottomed." (2) The instructions in this case correctly declare the law. No error was committed by the trial court in the admission or exclusion of testimony. The defendant has been fairly tried and the judgment of conviction should be affirmed.

OPINION

Gantt, P. J.

This is an appeal from the Lincoln circuit court. The indictment is in the following words:

"State of Missouri,

County of Lincoln.

"In the circuit court of Lincoln county, Missouri, at the spring term, A. D. 1893.

"The grand jurors for the state of Missouri duly impaneled, sworn and charged to inquire within and for the body of the county of Lincoln and state of Missouri, upon their oath charge and present that Robert Wood on or about the eighth day of January, A. D. 1893, at the county of Lincoln in the state of Missouri, in and upon one William Shannon, feloniously, 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 Shannon in and upon the back of the head and neck, of him the said William Shannon, with a certain shotgun loaded with powder and leaden balls as aforesaid, he, the said Robert Wood, then and there in both his hands had and held, with the intent, then and there, him the said William Shannon on purpose and of his malice aforethought, to kill and murder, against the peace and dignity of the state.

"Edgar B. Woolfolk,

"Prosecuting Attorney Lincoln County, Mo."

The prisoner was convicted and sentenced to the penitentiary for a term of four years. The errors assigned for reversal will be considered in the order of appellant's brief.

I. The defendant challenged the sufficiency of the indictment, both by his motion to quash, and in his motion in arrest of judgment, for the reason that it failed to charge that the assault complained of was committed with a felonious intent, or with an intent feloniously to kill.

The indictment is sufficient. It specifically charges the assault to have been committed feloniously, on purpose, and with malice aforethought "with the intent then and there the said William Shannon, on purpose and of his malice aforethought to kill and murder." It was decided as early as the case of the State v. Comfort (1838), 5 Mo. 357, that in an indictment under the section under which this indictment was preferred, it was unnecessary to conclude with the words "with intent feloniously to kill," but that it was...