the State v. Gould
| Decision Date | 17 November 1914 |
| Parties | THE STATE v. THOMAS GOULD, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Francois Circuit Court. -- Hon. Peter H. Huck Judge.
Affirmed.
B. H Boyer for appellant.
(1) The swearing of the jury the first time caused jeopardy to set in and hence defendant's motion for a directed verdict should have been sustained. Ex parte Snyder, 29 Mo.App. 260. (2) Instruction 1, given by the court was erroneous as not properly declaring the law of the case to the jury. It is in conflict with all the other instructions in the case and is misleading, confusing and resulted in the verdict rendered herein. Said instruction is at variance with the information and wholly improper, especially for the following reasons Because said instruction directs the jury to find the defendant guilty if they find that "at any time within three years, next, before the filing of the information" he did certain things, and yet fails to inform the jury of the date laid in the information, or the date of the filing thereof. Because said instruction directs the jury to find defendant "guilty of assault with intent to kill" if certain facts were found and yet failed to tell the jury of what degree of said crime they should find him guilty. Because said instruction failed to tell the jury what it takes to constitute the crime of assault with intent to kill with malice aforethought, or that they found the necessary facts to find the defendant guilty of said crime as he stands charged in the information, as it should have done. Because said instruction and in fact all the instructions given in the case, submit the case to the jury upon the theory that there was a shooting at when the information charges a shooting. "The purpose of instructions is to inform the average layman of the jury of a clear and plain view of the legal principles applicable to the case, by which he may be guided to a just result." Blanton v. Dold, 109 Mo. 64; State v. Turlington, 102 Mo. 642; State v. Lewis, 118 Mo. 79; State v. Bryant, 55 Mo. 309. "Issues not pleaded should not be submitted by instruction." Fairgrave v. Moberly, 29 Mo.App. 141. "An instruction which is broader than the indictment should not be given." State v. Smith, 119 Mo. 439. "As to degree of crime there must be an instruction." State v. Wyatt, 50 Mo. 309. (3) The verdict is not in proper form and will not support a judgment. There is a great line of cases in this State holding that where there are two or more charges in the same count of the information, such as in burglary and larceny, that there must be a separate finding on each count or charge if a conviction on each or either and that a general finding will not suffice. State v. McGee and McGraw, 181 Mo. 315; State v. Jones, 168 Mo. 403; State v. Rowe, 142 Mo. 440; State v. Logan, 209 Mo. 402; State v. McCune, 209 Mo. 400; State v. Kelley, 206 Mo. 694; State v. DeWitt, 186 Mo. 67; and a great many other cases that might be cited. What would have been the result in this case if the jury should have returned the verdict they did but had assessed the punishment at imprisonment in the county jail for one year, or at a fine of one hundred dollars? (4) The motions for new trial and in arrest of judgment were overruled and, over the insistent protest of defendant, he was sentenced and judgment was passed and pronounced by the court on May 30, 1913. May 30th is, by virtue of Sec. 6701, R. S. 1909, a legal or public holiday. If civil judgments and executions thereon are prohibited on public holidays, and yet men may be deprived of their lives or liberty on such a day, then the constitutional inhibition against refusing to extend the equal protection of the law to all men is violated.
John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.
(1) The cases of State v. Wilson, 172 Mo. 428, and State v. Baker, 216 Mo. 543, cited in appellant's brief, if anything, sustain the information in the case at bar. Notwithstanding the statement in the appellant's brief, the information in this case does charge that "the said Thomas Gould . . . did shoot off, at, against and upon the said Charles Whaley," and clearly alleges that the assault was committed by shooting. It is not necessary that the information should allege that the weapon was "had or held in his hand or hands," as contended by the appellant. (2) The verdict finds "the defendant guilty as he stands charged in the information." This is a general verdict, and is proper in form and substance according to the decisions of this State. The information charged "assault with intent to kill with malice," and the words "with malice aforethought" in the verdict are unnecessary in order that the verdict be valid as to the charge alleged, the verdict being a general verdict and finding the defendant guilty as charged. State v. Bishop, 231 Mo. 411; State v. Williams, 191 Mo. 205. Where the information charges but one offense, a general verdict is sufficient in form. State v. Gordon, 196 Mo. 185; State v. Stark, 202 Mo. 210; State v. Martin, 230 Mo. 691; State v. Richardson, 248 Mo. 574. In the case at bar the court instructed the jury in instruction 1 as to assault with intent to kill with malice and in instruction 2 as to assault with intent to kill without malice. The information charged assault with intent to kill with malice and the jury returned a general verdict finding the appellant guilty under instruction 1. (3) It is contended that instruction 1 is faulty in that it instructs the jury on the question of the Statute of Limitations, using the words "at any time within three years next before the filing of the information," and does not set out the date on which the information is filed. There was no doubt in the evidence as to the exact date of the shooting and the assault, the evidence on this point not being in conflict. The information and the oath thereto were read to the jury, and the date of the oath must be assumed to have been on the same date as the filing of the information. Although it is customary in instructions to state the date upon which the information is filed, yet no decision can be found which holds that the omission of the date renders the instruction faulty. On the contrary, this court has held that the information is proper in form. Patterson's Instructions in Criminal Cases, sec. 85; State v. Washburn, 48 Mo. 240. It is contended that instruction 1 does not fully define "assault with intent to kill with malice." The contention of the appellant in this regard is unfounded. There are no degrees of "assault with intent to kill with malice," and the jury are fully directed in the second instruction as to "assault with intent to kill without malice" in the court's instruction 2. The court might have added "as charged" after the words "assault with intent to kill," but this was entirely unnecessary. State v. Tetrick, 199 Mo. 102; State v. Harris, 229 Mo. 423. (4) The record fails to show that a plea of "not guilty" was entered for the defendant by the court on defendant's refusal to plead. The facts as they appear from the record and the bill of exceptions are such as to apprise the appellant fully of the charge against him. The appellant heard the charge read to him. There was evidently an announcement of ready in the case when it was called and every opportunity was given him to enter his plea. After the formal arraignment the appellant did not object in any way to the failure of the court to enter the plea of record, and only did object at that time to proceeding with the trial for the reason there had been prior jeopardy. The case of State v. O'Kelley, 258 Mo. 345, squarely presents the necessity of a plea of guilty being entered of record. However, the facts above stated, we believe, present a stronger example of an instance of waiver of the plea on the part of the defendant. It cannot be said that there was any prejudice to the substantial rights of the defendant on the merits, and we believe the Statute of Jeofails, Sec. 5061, R. S. 1909, would clearly apply.
OPINION
ROY
In Banc
ROY, C. -- Defendant was convicted of an assault with intent to kill with malice, and sentenced to three years in the penitentiary. The information so far as it is necessary to set it out charges that defendant "on the nineteenth day of December, A. D. 1912, at and in the county of St. Francois and State of Missouri, in and upon one Charles Whaley feloniously, wilfully, on purpose and of his malice aforethought did make an assault; and the said Thomas Gould with a certain deadly weapon, to-wit, a revolving pistol loaded with gunpowder and leaden balls, then and there feloniously, wilfully, on purpose and of his malice aforethought did shoot off, at, against and upon the said Charles Whaley then and there giving to the said Charles Whaley in and upon the body of him, the said Charles Whaley, with the pistol aforesaid, two wounds, with the felonious intent then and there him, the said Charles Whaley, feloniously, wilfully, on purpose and of his malice aforethought to kill and murder."
Defendant and Chris Iahn had been running a saloon at the town of Frankclay several years at the time of the alleged offense on December 19, 1912. Maston Whaley lived diagonally across the street from the saloon and conducted a "beer house" on the opposite side of the street almost opposite the saloon. Charles and Bert Whaley are his sons. On the night of the difficulty, Charles Whaley was in the saloon having a friendly time. The defendant spoke of a...
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