The State v. Spaugh

• Decision Date: 20 November 1906
• Citation: 97 S.W. 901,199 Mo. 147
• Parties: THE STATE v. ARTHUR SPAUGH, Appellant
• Court: Missouri Supreme Court

97 S.W. 901

199 Mo. 147

THE STATE v. ARTHUR SPAUGH, Appellant

Supreme Court of Missouri, Division Two

November 20, 1906

Appeal from Iron Circuit Court. -- Hon. E. M. Dearing, Judge.

Affirmed.

Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.

(1) The information, which was duly sworn to by the prosecuting attorney, is sufficient. It follows the language of the statute, and the approved form; the second count was the one upon which defendant was convicted. State v Chumley, 67 Mo. 41; State v. Seward, 42 Mo 206; Kelley's Crim. Law, sec. 579. (2) No error was committed by the trial court in admitting the evidence of Dr Marshall to the effect that, in his opinion, a pair of brass knucks was a deadly weapon. State v. McLaughlin, 149 Mo. 27. Neither was error committed in permitting the State's witnesses to testify that defendant had a pistol at the time he committed this assault. True, defendant was not charged with assaulting Ake with a pistol, but rather with a pair of brass knucks; but all that the defendant did and said at the time of the commission of the alleged crime was admissible as a part of the res gestae. State v. Dettmer, 124 Mo. 433; State v. Nelson, 166 Mo. 202; State v. Pennington, 124 Mo. 388. (3) Two years in the penitentiary is neither excessive nor cruel punishment for a defendant who commits an uncalled-for assault on a citizen upon a public street of a Missouri town, and inflicts painful injuries on his head, neck and face with a pair of brass knucks.

OPINION

BURGESS, P. J.

At the October term, 1904, of the circuit court of Iron county the defendant was convicted of an assault with intent to kill one Frank P. Ake, and his punishment fixed at two years imprisonment in the penitentiary, under an information filed against him by the prosecuting attorney of said county. He appeals.

The facts are, substantially, that Ake was passing a livery stable in Ironton, on his way to the railroad depot in that town, when defendant, who was there, said to Ake that he could whip him. After some words between the parties, Ake went on to the depot, and upon his return he again passed the livery stable, in front of which the parties again met, and after a few words passed between them of an unfriendly character, defendant assaulted Ake, striking him several times on the neck and face with a pair of brass knucks. When Ake left defendant and started on in the direction he had been traveling, defendant followed him some sixty or seventy yards, and again assaulted him, struck him several blows, knocking him down twice and inflicting upon him several bruises and painful injuries.

Defendant is not represented in this court, but in a motion in arrest filed in the court below the point is made that the information is insufficient in that it does not charge defendant with any crime known to the law. The second count of the information under which defendant was convicted is based upon section 1848, Revised Statutes 1899, and is in substantial compliance with that section. It is...