State v. Bailey

21 Mo. 484 | Mo. | 1855

Ryland, Judge,

delivered the opinion of the court.

The defendant was indicted for a felonious assault and battery on David Enix, at the January term of the Circuit Court of Laclede county, in the year eighteen hundred and fifty-four.

He was arrested and tried on this indictment at the March term, 18.55, and was found guilty, and sentenced to pay a fine of hundred dollars and be imprisoned in the county jail for three months.

The defendant moved for a new trial, and also in arrest of judgment. These motions being overruled, he excepted to the opinion of the court, and brings the case here by appeal.

The counsel for the defendant insists before this court that the indictment is not sufficient, and that improper instructions were given and proper instructions refused upon the trial in the court below.

The indictment is found upon the 88th section of the 2d article of the act concerning, crimes and punishments. (R. C. 1845.) This section declares, “ If any person shall be maimed, wounded or disfigured, or. receive great bodily harm, or his life be endangered by the act, procurement or culpable negligence of another, in cases and under circumstances which would constitute murder or manslaughter if death had ensued, the person by whose act, procurement or negligence such injury or danger of life shall be occasioned, shall, in cases not otherwise provided for, be punished,”'&c.

The indictment charges that William Bailey, late, &c., did on the 10th day of November, A. D. 1858, at the county of Laclede aforesaid, unlawfully and feloniously make an assault on one David Enix, and did then and there feloniously strike him, the said David Enix, with a large block of wood, being, a dangerous weapon, whereby he, the said David Enix, wa.s maimed, wounded'and disfigured, and received great bodily harm, under such circumstances as would have constituted manslaughter if death had ensued, contrary, &c.

The counsel for Bailey objects to the indictment, first, because there is no venue to the maiming, wounding and disfiguring charged in the indictment. To this objection, it is well answered that there is venue laid to 'the assault and to the stroke, which is sufficient. In the second place, he objects that the indictment does mot show that if death had ensued, it would have been murder or manslaughter. This objection is also not well taken, for it is clear that if one unlawfully and feloniously strike another, and death ensue, this is at least manslaughter. In our opinion, there is no necessity to state the circumstances more minutely — the assault and the stroke are charged to have been made unlawfully and also feloniously. Now let death ensue from such an act, and who will deny that the homicide is either murder or manslaughter ? No other circumstances -than those described in this indictment are required to complete the offence mentioned in this section. The unlawful and felonious act, producing the maiming, wounding and disfignring, has been stated and charged distinctly, and it is properly averred that such maiming, wounding and disfiguring was caused by such unlawful and felonious act.

See cases heretofore before this court, under this same section; for the codes of 1835 and 1845 contain the same section, though in that of 1835 it is numbered 35 instead of 38, of art. 2, Crimes and Punishments. In State v. Jennings, (9 Mo. 852,) the indictment is nearly word for word like this, with the exception of the party’s name. I mean the charging part is substantially the same. This was considered good. Carrico v. The State, (11 Mo. Rep. 579,) upon the same section. In 19 Mo. Rep. 678, the case of The State v. Jennings is referred to, and the doctrine therein sanctioned.

So far as regards the objections urged against the indictment in the present case, I might have referred to these cases and rested our judgment thereon. The indictment is substantially good.

In looking over the record, we find the court was warranted in giving the instructions on the part of the State from the evidence in the case. The instruction given by the court, in lieu of the defendant’s 2d instruction, went as far for tbe defendant as the law warranted ; and there is no evidence to authorize the first instruction asked for by the defendant, consequently the court properly refused it.

Upon the whole record, we See no error committed to the prejudice or injury of the defendant. The law of the case was fairly laid down by the court, and we will not disturb its judgment. Let the judgment below be affirmed; the other judges concurring.