The State v. Feeler
| Decision Date | 01 December 1920 |
| Citation | 226 S.W. 15,284 Mo. 673 |
| Parties | THE STATE v. MIKE FEELER, Appellant |
| Court | Missouri Supreme Court |
Appeal from Maries Circuit Court. -- Hon. J. G. Slate, Judge.
Affirmed.
F. H Farris and J. A. Watson for appellant.
Frank W. McAllister, Attorney-General and C. P. Le Mire, Assistant Attorney-General, for respondent.
(1) The information is sufficient. The court did not err in permitting the amendment of which appellant complains. State v. Walton, 255 Mo. 240; State v Loesch, 180 S.W. 878; State v. Sillbaugh, 250 Mo. 312; State v. Keener, 225 Mo. 494; Secs. 4970 5061, R. S. 1909. (2) The court did not err in permitting the State to inquire as to the matter of flight by the defendant immeriately after the commission of the crime. State v. Harris, 232 Mo. 320; State v. Spaugh, 200 Mo. 599; State v. Adler, 146 Mo. 26. (3) Remarks by the court objected to do not constitute reversible error. State v, Walton, 255 Mo. 244; State v. Rasco, 239 Mo. 577. (4) The remarks of the prosecuting attorney complained of in the motion for new trial do not constitute reversible error. State v. Armstrong, 167 Mo. 271; State v. Emery, 76 Mo. 349.
Appellant was charged by information in the Circuit Court of Maries County with an assault with intent to kill under Section 4481, Revised Statutes 1909.
The assault was committed at a social gathering at which there was dancing. Aaron Hodge, who was assaulted, had a quarrel with Lincoln Feeler, the brother of the appellant, as to their respective rights to dance in a set then being formed. Hodge struck at Lincoln with his fist, and the latter ran off of the floor. A short time thereafter, while Hodge was standing talking to a young woman with whom he was dancing, the appellant came up and struck him on the head with a beer bottle. Hodge was felled to the floor by the blow, and appellant ran up, kicked him and fled. When Hodge was lifted from the floor he was unconscious and was bleeding from his mouth and ears. A subsequent examination disclosed that his skull had been fractured. The wound thus inflicted did not prove fatal, and after several weeks' confinement, during which time he was under medical treatment, he partially recovered and testified at the trial.
Not only had there been no controversy between appellant and Hodge, but it does not appear that they had at that gathering been in each other's immediate presence before the assault.
Upon a trial the appellant was convicted as charged and sentenced to two years' imprisonment in the penitentiary. From that judgment he appeals.
I. It is urged that error was committed in permitting the prosecuting attorney to amend the information after the jury had been sworn by the inserting in the information of the letter "d" in the name of the prosecuting witness so that the same would be spelled "Hodge" instead of "Hoge."
It is provided in our Statute of Jeofails regulatory of criminal procedure that " an information may be amended in matter of form or substance at any time by leave of court before trial, and on the trial as to all matters of form and variance, at the discretion of the court when the same can be done without prejudice to the substantial rights of the defendant on the merits" etc. [Sec. 5061, R. S. 1909.] The test, as disclosed by this court in State v. Walton, 255 Mo. 232, 164 S.W. 211, as to whether a defendant is prejudiced by the amendment of an indictment or information is whether a defense under the charge as originally made would be equally available after the amendment and whether any evidence for defendant would be equally applicable as well as before amendment. The amendment here made simply changed the spelling of the name of the person assaulted and was a matter of form (Rasmussen v. State, 63 Wis. 1, 22 N.W. 835; 22 Cyc. 441); and a defense under the information as originally drawn would be equally applicable after the amendment. It does not appear, therefore, that the defendant was in any wise prejudiced by the amendment, and this is the gist of the test stated.
In State v. Loesch, 180 S.W. 875, in applying the statutory rule above cited, we held that an information charging the defendant with obtaining money under false pretenses might be amended so as to allege that the property conveyed was owned by the grantors at the time of the conveyance.
In State v. Sovern, 225 Mo. 580, 125 S.W. 769, an information for an assault with intent to kill improperly charged the accused with inflicting the wounds upon himself. An amendment was permitted striking out the name of the accused as thus employed and inserting the name of the injured party. While this rule was under the general statute of jeofails (Sec. 5115, R. S. 1909), it was likewise authorized by the statute first cited (Sec. 5061, R. S. 1909), which by its terms not only declares the general Statute of Jeofails applicable to informations as well as indictments, but makes express provision as to the manner in which the former may be amended. Our reports are replete with cases discussing the various amendments that may be made under these statutes. That the amendment complained of is clearly within their purview there seems to be no doubt. This contention is therefore overruled.
II. The objections as to errors in the admission of testimony were not made in such a manner or so preserved as to entitle them to a review.
III. The remarks of the trial judge are complained of. While somewhat petulant at times and evincing impatience at the prolix manner in which the witnesses were being examined, a careful review does not disclose any remark which by reasonable intendment can be construed as prejudicial.
IV. All of the instructions given on behalf of the State, designated numerically, are alleged to be erroneous. Numbers one, two and three were on the presumption of innocence and reasonable doubt. Number four defined the crime as charged under the statute and prescribed the punishment. Number five was in reference to the credibility of witnesses. Number six defined the technical terms employed in charging an offense of this nature. Number seven was as to the presumption arising from the use of a deadly weapon at some vital point. Number eight told the jury that no opprobrious or abusive words would justify an assault. These instructions were in the forms which have been repeatedly approved by this court in cases of this character and are not subject to valid criticism.
If it be contended that instruction numbered four was erroneous in not submitting to the jury the question as to whether or not the beer bottle with which the assault was committed was a dangerous and deadly weapon, it will suffice to say that the wound inflicted was of such a nature that the deadliness of the weapon might be presumed and it was unnecessary therefore to submit that question to the jury. This subject was exhaustively discussed by this court in State v. Keener, 225 Mo. 488, 125 S.W. 747, in which we held that " an instruction which told the jury that 'he who wilfully, that is, intentionally, uses upon another at some vital point a deadly weapon, to-wit, a knife, must, in the absence of qualifying facts, etc.' is not reversible error in that it assumes that the knife is a deadly weapon, in view of the fact that the evidence shows that the wounds inflicted were dangerous."
As we said in State v. Harris, 209 Mo. 423, 108 S.W. 28 "the uniform construction placed by this court upon the first clause of Section 1847 (now Sec. 4481, R. S. 1909) has...
To continue reading
Request your trial