100 Mo. 516 | Mo. | 1890
The charging part of the indictment in this cause is the following: “ That Wm. C. Clayton, late of the county aforesaid, on, or about, the seventeenth day of June, 1886, at the county of Hickory,
I. The indictment herein attempts to charge a felony, that is, a crime which is liable to be punished by imprisonment in the penitentiary, not one which must be thus punished. R. S. 1879, sec. 1676. This has been the law in this state over fifty years. Stat. 1835, sec. 36, p. 216; R. S. 1845, sec. 36, p. 414; R. S. 1855, see. 38, p. 645; Gen. Stat. 1865, sec. 33, p. 828; Johnson v. State, 7 Mo. 183; Ingram v. State, 7 Mo. 293; State v. Murdock, 9 Mo. 730; State v. Green, 66 Mo. 632. Being thus a felony, it was indispensable that the indictment should charge that the act, to-wit, the assault, was done with a felonious intent, because without a felonious intent there can be no felony. Curtis v. People, Breese, 256; State v. Swann, 65 N. C. 330; 1 Arch Cr. Plead. 885, 929; 3 Chit. Cr. Law, 788, 828; 2 Bishop Crim. Proc., secs. 79, 651, 653; State v. Thompson, 30 Mo. 470; Beasley v. State, 18 Ala. 535.
The making of an assault like the one under discussion is not a new offense created by statute; it was an offense at common law; but was only a misdemeanor. 1 East. P. C. 411. The grade of the offense, however, having been raised to a felony, the common-law rules as to charging felonies must apply, and the act charged like any other felony originating at common law. On this ground it must be held that the indictment is insufficient and that the objections to its sufficiency were well taken.
II. It seems that most of the authorities favor the view that assaults may be charged in general terms, that
III. Allen, upon whom the assault is charged to have been made, had an encounter, a few moments before the assault occurred, with Charley Clayton in which the latter was shot and killed. Wm. C. Clayton was not present when this passage at arms occurred, and had nothing at all to do with it. Any testimony on this point was wholly irrelevant and should not have been admitted. If there had been any connection shown between the two encounters; if they both had formed but part of the res gestee, then it woúld have been different. 2 Bishop Crim. Proc., sec. 662; State v. Johnston, 7 Mo. 183. As it was, an entirely independent matter was injected into the trial of this cause, the only effect of which was to distract the minds of the jurors from the real issues, or else to fill their minds with prejudice against the accused. State v. Parker, 96 Mo. 382, and cases cited. The court had promised that, “ unless defendant ’ s connection with such prior difficulty was shown, he would withdraw it from the jury; ’ but this was not done; this action of the court, therefore, had the effect to sanction this inadmissible testimony
The like line of argument applies to the action of the trial court in refusing to give the fourth instruction in which defendant asked that such objectionable testimony be withdrawn from the jury.
IV. And for similar reasons testimony should not have been admitted that Allen, at the time of the assault, held the position of town marshal. There was no testimony whatever that Allen was acting in his official capacity as a peace officer in trying to effect the arrest of the defendant at the time the assault was made, and certainly because he was such an officer gave him no greater rights than any other citizen, when engaged in a mere personal encounter. Indeed the testimony of Kinney rather seems to show that Allen himself was the assaulter instead of the party assaulted. If so, the fact that Allen was marshal had no possible relevancy to the case, and should have been excluded. In this latitude, at least, we have not yet reached the point where “there’s such divinity doth hedge” an official, that he is exempted from the operation of the ordinary laws of the country. As to those laws, he occupies just the same position as the humblest citizen, no better and no worse. It is only while an officer is actually engaged in performing some official duty that the law throws around him its “special protection,” and not otherwise or elsewhere. State v. Dierberger, 96 Mo. 666; State v. McNally, 87 Mo. loc. cit. 652, et seq., and cas. cit.
Y. The instructions given at the instance of the state by the court were as follows :
“ The court instructs the jury that, if they find from the evidence that Wm. C. Clayton, at any time within three years prior to the finding of the indictment in this*522 cause, at the county of Hickory, and state of Missouri, feloniously, on purpose and wilfully, made an assault on one Thomas Gr. Allen with a pistol, loaded with gunpowder and leaden balls, with the intent, him, the said Thos. Gr. Allen, then and there to kill, they will find defendant guilty and assess his punishment at imprisonment in the penitentiary not exceeding five years, or in the county jail not less than six months, or by both a fine of not less than one hundred dollars and imprisonment in the county jail not less than three months, or by a fine of not less than one hundred dollars.”
“The court instructs the jury, that, before they can acquit the defendant on the ground of a reasonable doubt, such doubt must be a substantial doubt and not a mere possibility of his innocence.”
“The court instructs the jury that, in passing upon the guilt or innocence of the defendant, they will take into consideration all the facts and circumstances detailed in evidence.”
“The court instructs the jury that, before they can acquit the defendant upon the ground of self defense, you must believe and find from the evidence that the defendant had reasonable cause to apprehend that Thomas Allen was about to inflict upon him some great bodily harm, and that such danger was imminent and impending, and unless you so believe you will find defendant guilty and assess his punishment as provided in these instructions.”
No valid objection can be taken to these instructions.
For the errors aforesaid, the judgment will be reversed and the cause remanded.