The State v. Janke
| Decision Date | 19 December 1911 |
| Citation | 141 S.W. 1136,238 Mo. 378 |
| Parties | THE STATE v. EDWARD JANKE, Appellant |
| Court | Missouri Supreme Court |
Appeal from Howell Circuit Court. -- Hon. W. N. Evans, Judge.
Reversed and remanded.
Green & Green and J. N. Burroughs for appellant.
(1) The information is bad under either Sec. 4481 or 4482, R. S 1909, for the reason that it fails to charge that the assault was done with felonious intent. An intent to kill must be charged under either of those sections. State v Clayton, 100 Mo. 516; State v. Norman, 136 Mo 1. (2) Insufficiency of the information may be raised for the first time on appeal State v. Stowe, 132 Mo. 199; State v. Hall, 130 Mo.App. 170; State v. Nunely, 185 Mo. 102. (3) If the information is bottomed on section 4483, then instruction 1 is erroneous, for the following reasons: Because it attempts to define an assault with intent to kill as covered by the prior sections. That is no part of the offense defined in section 4483, but is a greater offense. State v. Melton, 102 Mo. 684. Because it does not tell the jury that if the weapons used were not dangerous, then the wounds inflicted must have been of a character likely to produce death. State v. Bailey, 21 Mo. 484; State v. Carrico, 11 Mo. 369. (4) The fourth instruction improperly restricted the defense. The testimony shows that the prosecuting witness made demonstrations towards the defendant with his cane and in other ways in addition to his assault with a gun. In this instruction the jury was directed to acquit defendant in the event he was defending himself against an assault by means of a gun. No other rights were given him under this instruction. State v. Hollingsworth, 156 Mo. 178.
Elliott W. Major, Attorney-General, and Campbell Cummings, Assistant Attorney-General, for the State.
(1) The information is for unlawful and felonious assault by maiming, wounding, etc., under Sec. 4483, R. S. 1909. It evidently took for its model the indictment in the much cited and approved case of State v. Bailey, 21 Mo. 484. The Bailey Case is cited with approval by this court in State v. Nieuhaus, 217 Mo. 344; State v. Munson, 76 Mo. 113; State v. Van Zant, 71 Mo. 543; State v. Harper, 69 Mo. 426; State v. McDonald, 67 Mo. 16; State v. Bohannon, 21 Mo. 491. Under this section, as has been so frequently construed, it is not necessary to allege that the act was done willfully, intentionally, with intent to kill, with malice, with a deadly or dangerous weapon, or under circumstances which, had death ensued, would have constituted murder or manslaughter. It is sufficient to follow the statute. State v. Nieuhaus, 217 Mo. 344; State v. Moore, 65 Mo. 606; Jennings v. State, 9 Mo. 862; State v. Bohannon, 21 Mo. 490; State v. Bailey, 21 Mo. 484; State v. Calvert, 209 Mo. 285; State v. Campbell, 210 Mo. 215; State v. Kelley, 191 Mo. 680; State v. Temple, 194 Mo. 237. (2) Instruction 4 on self-defense was in defendant's favor, and could not be prejudicial to his rights, as under the evidence there was no evidence of and no element of self-defense in the case. According to appellant's testimony and evidence, he denied any assault, any striking or kicking him or making any threats against him, and claimed to have only pulled away from prosecuting witness in order to have escaped his clutches. There was no evidence to support the instruction and none other on self-defense was requested. State v. Bailey, 21 Mo. 490; State v. Groves, 194 Mo. 459; State v. Melton, 102 Mo. 689; State v. Gartrell, 171 Mo. 489; State v. McCaffery, 225 Mo. 617; State v. Whitsett, 232 Mo. 511; State v. Person, 234 Mo. 262.
At the December term, 1910, of the Howell Circuit Court, the defendant was convicted of felonious wounding, and sentenced to pay a fine of two hundred dollars, and has appealed.
The information is as follows: "O. F. Wayland, prosecuting attorney within and for the county of Howell, in the State of Missouri, informs the court that one, Edward Janke, on the 29th day of June, A. D. 1910, at the said county of Howell, did then and there willfully and unlawfully and feloniously make an assault on one W. Hoppe, and did then and there feloniously strike, choke and beat him the said W. Hoppe with his hands and fists, and did kick and stamp the said W. Hoppe with his boots and shoes which were on the feet of the said Edward Janke, and did strike and beat the said W. Hoppe with some hard weapon or instrument unknown to this prosecuting attorney, all of which being dangerous and deadly weapons, whereby he, the said W. Hoppe, was maimed, wounded, beaten and ill-treated with great force which was likely to produce death and the said W. Hoppe received great bodily harm and which was likely to produce death, contrary to the form of the statutes in such cases and against the peace and dignity of the State."
The prosecuting witness, Hoppe, resided at Willow Springs, and was engaged in the real estate business. He was a cripple, one leg having been previously broken several times, and was misshapen and lacked circulation. He walked with one and sometimes two canes.
The defendant, about a year previously, had come from Dakota and purchased a farm in Howell county through the agency of Hoppe, where he had since resided, and, just before the difficulty in question, had bought another farm from Hoppe as agent.
On the day of the trouble defendant went to Hoppe's house to see him about the transfer of the insurance policy on the property last purchased. The parties up to that time were good friends. They drank freely of beer, but there is no claim that either was very drunk. At last they got into a senseless quarrel as to whether Missouri land was better or worse than Dakota land. Finally the parties got into a personal encounter in the hall of Hoppe's house. Defendant testified that Hoppe pointed a gun at him, and tried to strike him with a stick and caught defendant round the legs and held on to him, and that all that he the defendant did was to try to pull loose from Hoppe. Hoppe's leg was broken, and subsequently amputated.
The court gave among others the following instructions: "The court instructs the jury that if you find and believe from all the facts and circumstances in evidence in this case that at any time about the 29th day of June, 1910 in Howell county, Missouri, this defendant did unlawfully and without just cause or provocation, assault W. Hoppe, with intent to do him some great bodily harm, and did then and there strike, beat or stamp said Hoppe, in a manner likely to produce death or great bodily harm, and did then and there inflict on said Hoppe great...
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