The State v. Foster
| Decision Date | 26 March 1920 |
| Citation | 220 S.W. 958,281 Mo. 618 |
| Parties | THE STATE v. HENRY C. FOSTER, Appellant |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- Hon. H. W. Uttz, Judge.
Affirmed.
Randolph & Randolph for appellant.
(1) The information in this case is fatally defective and the demurrer thereto should have been sustained. It is difficult to tell which section of the statutes this information was attempted to be drawn under. The charge of assault with intent to maim is coupled with the language "and commit great bodily harm." Section 4481 is the section which mentions particularly assault with intent to maim, but there is no such offense in the statutes as the offense of "commit great bodily harm." The offense contemplated by Section 4482 is a distinct offense and is not an inferior degree of the offense contemplated by Section 4481. State v. Burk, 89 Mo. 639; State v Lockwood, 119 Mo. 463. The indictment does not allege that the act was done of his malice aforethough, but uses this language: "and did then and there on purpose and his malice aforethought." State v. Rector, 126 Mo. 340. (2) The instruction offered by defendant in the nature of a demurrer to the evidence at the close of the evidence on the part of the State should have been given as there was positively no evidence of any kind or character of any intent to maim. It was clearly shown that the purpose of the defendant was to drive the prosecuting witness from the premises where he was trespassing and tearing down the fence of the defendant. The distance between the prosecuting witness and the defendant at the time the shot was fired would absolutely preclude the idea of an assault with intent to commit the crime of mayhem. Proof of an assault with intent to kill would not meet the evidence required under this information. State v. Kyle, 177 Mo. 659; State v. Ballard, 104 Mo. 634. (3) In that same connection the court made improper remarks in the presence of the jury, and in that same connection the private attorney of the prosecuting witness made and was permitted to make improper remarks in the presence of the jury and to ask questions which were improper, with no other purpose than to create prejudice against the defendant. State v Ulrich, 110 Mo. 365; State v. Prendible, 165 Mo. 354; State v. Fisher, 124 Mo. 464; State v Young, 99 Mo. 682. (4) It was improper and prejudicial to the defendant for the court to permit Mr. Lockwood, the private attorney of the prosecuting witness, to cross-examine defendant as to matters concerning which he was not asked on direct examination. R. S. 1909, sec. 5242; State v. Grant, 144 Mo. 63; State v. Hathhorn, 166 Mo. 239; State v. Kyle, 177 Mo. 663; State v. Bell, 212 Mo. 123. (5) The instruction for the State shows an effort to cover both Section 4481 and Section 4482, but does not follow the information in that it does not use the words "malice aforethought" and uses the term "to maim and do great bodily harm." To assault with intent to maim is one offense cognizable under Section 4481, and an assault with intent to do great bodily harm is a separate and distinct offense under Section 4482 and they cannot be so combined in one instruction. If there is an intent to maim, then the intent to do great bodily harm is absent, except that maiming might result in great bodily harm. One offense is to do the act prohibited by Section 4480; the other is to do an entirely different act with an entirely different purpose. The punishment mentioned in the instruction is the punishment provided for in Section 4482. There can be no assault with intent to maim except "of malice aforethought," because such an assault is a deliberate assault conceived and carried out for the purpose of maiming the subject of the assault. State v. Priestley, 74 Mo. 24; State v. Dalton, 106 Mo. 464; State v. Whitsett, 111 Mo. 202; State v. School, 130 Mo. 396; State v. Hayden, 141 Mo. 311. (6) The defendant was entitled to have the jury instructed as to the meaning of the word maim and that the assault must have been with the intent to commit the crime of mayhem. The defendant specifically asked of the court to instruct on that point.
Frank W. McAllister, Attorney-General, and Lewis H. Cook, Special Assistant, for respondent.
(1) The information is sufficient in form and substance. It fully informs the defendant of the nature and cause of the accusation against him. State v. Nieuhaus, 217 Mo. 343; Kelley's Crim. Law & Proc. secs. 580-582; R. S. 1909, sec. 4483. (2) The instruction besides defining "feloniously" correctly states the law under Sec. 4483, R. S. 1909. State v. Webb, 266 Mo. 680. (3) The appellant complains because the court refused to instruct on the question of whether or not Aubuchon was in the act of committing a trespass when the shot mentioned in evidence was fired. The instruction was properly refused under the evidence in the case. Aubuchon was fifty yards from the appellant constructing a line fence with his back turned when appellant fired without warning. The testimony shows that the only reason the prosecuting witness committed an act of trespass was to prohibit the stock of the appellant from trespassing on the land in Aubuchon's possession. Had death resulted from the shooting the appellant would have been guilty of manslaughter in the third degree and the appellant cannot be heard to complain. R. S. 1909, sec. 4463.
Appellant was convicted in the Circuit Court of Buchanan County in June, 1919, of an assault with intent to maim and do great bodily harm and his punishment assessed at twelve months' imprisonment in the county jail. From the judgment rendered thereon he appeals.
Aside from formal averments, the information is as follows: "that on or about the 7th day of August, 1918, at said county, Henry C. Foster in and upon one Dennis Aubuchon, feloniously, on purpose and of his malice aforethought did make an assault, and did then and there on purpose and his malice aforethought feloniously shoot at him, the said Dennis Aubuchon, with a certain deadly and dangerous weapon, to-wit, a double-barreled shot-gun, loaded then and there with gun powder and leaden balls, which he, the said Henry C. Foster, then and there held in his hand, with intent then and there him, the said Dennis Aubuchon, on purpose, of his malice aforethought, feloniously to maim and commit great bodily harm; against the peace and dignity of the State."
Appellant and the prosecuting witness, Aubuchon, occupied adjoining tracts of land. The former had built a wire gap in a fence which enclosed a small portion of his tract, the purpose of which was to admit his cattle to a spring of water. The fence of which this gap was a part, connected with that enclosing the land of Aubuchon. The latter objected to the use of the gap by the appellant for the purpose mentioned. On the morning of the assault, Aubuchon, aided by his sons and a hired man, went to where the gap was located and proceeded to tear it and the fence connecting it with appellant's land down, and to build a closed fence of his own instead of that of appellant. The latter, having been notified of the proceeding, went to the scene, armed with a shot-gun and an axe. Walking towards Aubuchon, he ordered him off of the premises. The latter ignored the order, when the appellant fired at him with the shot-gun, a few shots striking him on the hand and hip. Aubuchon, with his sons and help, left the scene. Appellant thereupon cut the wires of the fence Aubuchon had built and replaced his own fence and the gap.
I. The statute (Sec. 4481, R. S. 1909) upon which this prosecution is based provides, so far as applicable to the facts in evidence, that every person who shall on purpose and of his malice aforethought shoot at another with the intent to maim such person shall be punished by imprisonment in the penitentiary not exceeding ten years. Thus the crime of shooting at a human being is specifically prohibited and by the terms of the statute classified as a felonious assault. [State v. Curtner, 262 Mo. 214, 170 S.W. 1141; State v. Bunyard, 253 Mo. 347, 161 S.W. 756.] An essential allegation in a charge based on this statute is that the act was committed feloniously, on purpose and with malice aforethought. [State v. Anderson, 252 Mo. 83, 158 S.W. 817; State v. Harris, 209 Mo. 423, 108 S.W. 28; State v. Temple, 194 Mo. 228, 92 S.W. 494; State v. McDonald, 67 Mo. 13; State v. Seward, 42 Mo. 206; State v. Harris, 34 Mo. 347.] The felonious intent with which the act was committed is properly charged. [State v. Bond, 191 Mo. 555, 90 S.W. 830.] As we held in State v. Phelan, 65 Mo. 547, and numerous other cases reviewed in State v. Bond, supra, the charging of an offense under Section 4481 is sufficient which follows the language of the statute, which embodies all of the essentials necessary to define the crime denounced and hence more need not be pleaded. [State v. Bersch, 276 Mo. 397, 207 S.W. 809.] A charge thus framed conforms not only to the rules of criminal pleading that nothing shall be left to implication or intendment, but to the constitutional requirement that the accused shall be apprised of the nature and cause of the accusation against him. [State v. Stegner, 276 Mo. 427, 207 S.W. 826.]
It is also contended that the information is defective in the omission of the word "of" preceding the words "malice aforethought" in the phrase "and did then and there on purpose and his malice aforethought," etc. The omission of the word "of" was not misleading, did not destroy the sense of the sentence from which it was omitted and hence this contention is not entitled to serious consideration. The disposition of the courts in the review of criminal cases while not ignoring...
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