State v. Zant

• Decision Date: 30 April 1880
• Parties: THE STATE v. VAN ZANT, Appellant.
• Court: Missouri Supreme Court

71 Mo. 541

THE STATE

v.VAN ZANT, Appellant.

Supreme Court of Missouri.

April Term, 1880.

Appeal from Webster Circuit Court.--HON. R. W. FYANN, Judge.

AFFIRMED.

John O'Day & Bro. and Jas. L. Rush for appellant.

J. L. Smith, Attorney-General, for the State.

HOUGH, J.

The defendant was indicted under the 33d section of article 2, chapter 42, Wagner's Statutes, (R. S. § 1264,) for stabbing, cutting, maiming, wounding and dis figuring one Mansfield Trammel; was tried and found guilty and sentenced to two years' imprisonment in the penitentiary.

1. INDICTMENT FOR FELONIOUS ASSAULT: surplusage.

The indictment charges that the defendant “did then and there unlawfully, willfully and feloniously, with intent to kill, in and upon the body of one Mansfield Trammel, in the peace of the State then and there being, make an assault, and that the said T. J. Van Zant, with a certain knife, which said knife was then and there a dangerous and deadly weapon, likely to do great bodily harm and produce death, and which said knife, he, the said T. J. Van Zant, in his hand then and there had and held, then and there unlawfully, willfully and feloniously did assault, strike, stab, cut, maim, wound and disfigure, and do great bodily harm to him the said Mansfield Trammel; and so, the grand jurors aforesaid, empaneled, sworn and charged as aforesaid to inquire, within and for the body of the county of Webster and State of Missouri, upon their oaths aforesaid, do say, find and present, that the said T. J. Van Zant, him the said Mansfield Trammel in the manner and by the means aforesaid, unlawfully, wilituily and teloniously did assault, strike, stab, cut, maim, wound and disfigure, with the intent, on the part of him the said T. J. Van Zant, him the said Mansfield Trammel to do great bodily harm and kill, contrary to the form of the statute,” &c.

The defendant filed a motion to quash, on the ground that the indictment was bad for duplicity and repugnancy. This motion was properly overruled. While the phraseology of the indictment is not, perhaps, precisely such as would have been employed by an experienced and skillful pleader, yet it sufficiently charges the offense defined by the section of the statute referred to, and is not open to the objections urged against it in the motion to quash. It is clearly not bad for repugnancy, as all the acts charged may have been, and, as appears from the testimony, were the result of a single assault. This being so, it is plain that the indictment charges but a single offense. State v. Fancher, 71 Mo. 460. In Jennings v. The State, 9 Mo. 852, it was held that it is not necessary to state in the language of the statute that the act charged would have been murder, or manslaughter, if death had ensued, but that it is essential to aver the circumstances themselves, which, if death had ensued, would have made the offense murder, or manslaughter; and it was doubtless with a view to meet this requirement, that the several allegations as to the intent of the defendant and the character of the assault, were inserted. Some of these allegations may be regarded as surplusage, but they do not vitiate the indictment. Carrico v. The State, 11 Mo. 579; State v. Magrath, 19 Mo. 678; State v. Bailey, 21 Mo. 484; State v. Bohannon, 21 Mo. 490.

2. ONE'S OWN STATEMENTS NOT EVIDENCE, WHEN.

The court committed no error in rejecting the evidence offered by the defendant, of statements made by himself as to his physical condition previous to and at the time of the commission of the offense charged, with a view of showing that he did not bring on the difficulty. His...