261 Mo. 694 | Mo. | 1914
Lead Opinion
Defendant was convicted of an assault with intent to kill with malice, and sentenced to three years in the penitentiary. The information so far
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. Mas-ton 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 fight which had occurred between Luther Lawson and Bert Whaley, and said to Charles Whaley, “If I was as good a man as Lawson I wouldn’t be afraid of all the Whaleys put together.” Charles resented that statement and the defendant struck at him, knocking his hat off. Charles Whaley went out of the saloon and to his home, Iahn throwing his hat into the street after him. Charles Whaley told his brother Bert about what occurred, and they testified that Bert went for the hat, Charles following. The latter testified that the hat was six ox-seven feet from the saloon porch; that Iahn came out axxd said, “To hell with all of you. You all look alike to me, the whole Whaley family;” that Gould came
Defendant and Iahn both testified that they had pistols when they went out of the saloon. Iahn did not know whether Charles Whaley shot at defendant. The latter testified that Charles Whaley struck hiin in the mouth with a rock and shot at him, grazing the side of his head, before he shot at Charles. The- doctor testified that defendant had an injury to his mouth and a horizontal abrasion on the side of his head a half inch wide and an inch or an inch and a quarter long. Mas-ton Whaley testified that defendant fired the first shot before he was struck by the rock.
Iahn, Tinker and defendant testified that the mother of Charles Whaley was standing in the street in front of the saloon with a shot gun in her hand.
After the jury was sworn to try the case, it was discovered that defendant had not been arraigned. The court proceeded to arraign him when the following occurred:
“Mr. Boyer: If the court please, I object to any arraignment of the defendant at this time by the reading of the information to him, or in any other manner, for the reason that the jury has been sworn to try this cause and the defendant has been placed in jeopardy, and the defendant should have his liberty by the court directing this jury to return a verdict of not guilty.
‘ ‘ The Court: Let the objection be overruled. Read the information to the defendant.
Defendant was then arraigned and the following occurred:
“The Court (addressing defendant and defendant’s counsel): Are you guilty or not guilty?
“Mr. Boyer: Tour Honor, we decline to plead. We are standing on our constitutional right, to a discharge on the ground of having already been placed in jeopardy on the same charge.
“The Court: The defendant will please stand
up. Let the jury be resworn. (The defendant here rises.)
“Mr. Boyer: The court please, we desire to. object to the swearing of this jury again, because the defendant has once been placed in jeopardy by the swearing of the jury to try this cause. It is a violation against the right of the defendant, that the defendant cannot be placed twice in jeopardy on the same charge."
‘ ‘ The Court: The court will have to overrule the objection. Swear the jury, Mr. Clerk.”
The jury was then sworn the second time and the trial proceeded. At the close of the State’s evidence and again at the close of all the evidence, defendant asked an instruction in the nature of a demurrer to the evidence. It was refused.
Instruction 1 given by the court was as follows:
“The court instructs the jury that if you believe and find from the' evidence that defendant Thomas Could, in the county of St. Francois and State of Missouri, at any time within three years next before the filing of the information, feloniously, wilfully and on purpose and of his malice aforethought, did shoot at Charles Whaley with intent to kill said Charles Whaley, the jury will find defendant guilty of assault with intent to kill and assess the punishment at imprison
The verdict was as follows: “¥e the jury find the defendant guilty as he stands ■ charged in the information and assess his punishment at three years in the State penitentiary.”
I. Appellant contends that the use of the word “with” before the words “a certain deadly weapon” in the information vitiates the indictment. That objection was made to the same use of the word with in State v. Turlington, 102 Mo. l. c. 651. It was held that the grammar and rhetoric were bad, but that the use of such word did not prejudice the substantial rights of the defendant.
II. It is contended that the evidence shows that defendant shot in self-defense; and that the demurrer to the evidence should have been given. We think not. It is conceded that both Iahn and the defendant went out of the saloon with pistols. The defendant held his in bis hand. The evidence for the State is that defendant shot at Charles Whaley before defendant was struck with the rock or shot at by any one.
III. Appellant contends that the jury having been sworn before the arraignment, his jeopardy had begun and that he was entitled to his dis-change, and that the subsequent arraignment and swearing of the jury put the defendant a second time in jeopardy. The contrary was held in State v. Weber, 22 Mo. 321.
IV. When arraigned the defendant refused to plead but stated that he stood on “his constitutional right to a discharge on the ground of having already been placed in jeopardy on the same charge.” No entry was made in the-
V. Fault is found with instruction 1 because it tells the jury that if they find that the defendant did certain things within three years before the filing of the information, they should fi11^ him guilty, without telling them of the date laid in the information, or the date of the filing of the information. The jury heard the information read. It charged that the offense occurred on December 19, 1912. The evidence on both sides shows that the difficulty in controversy was on that date. It was within three years of the filing of the information. The failure of the instruction to state the dates as contended for, in no way affects defendant’s rights and does not constitute error.
VI. It is said that instruction 1 tells the jury that if they found the facts as therein • mentioned they should find defendant guilty of assault intent to kill, without telling them to specify in the verdict that it was done with malice. If that omission was error, it was in favor of defendant, and he cannot complain. The jury did find him “guilty as he stands charged in the information” and that is sufficient. [State v. Bishop, 231 Mo. 411.]
VII. The fact that the judgment and sentence against defendant were entered on May 30, a legal holiday, does not invalidate the sentence an^ judgment. By section 1785-, Revised Statutes 1909, Sundays and other holidays are put on a par so far as the service of writs, process, warrants, orders and judgments is concerned. Such service is void. Section 3880', which prohibits the holding of courts on Sunday, does not, by its terms, include other holidays." In Bear v. Youngman, 19 Mo. App. 41, it was held that a judgment rendered by a justice of the peace on Thanksgiving day is not void under a statute which provides that a justice of the peace may hold court on any day except Sunday. It may be said that that case is not authority here. In Diesing v. Reilly, 77 Mo. App. l. c. 455, it was said: “We are not, however, aware of any rule forbidding the performance, of judicial duties on Christmas (twenty-fifth ■ of December), or the other holidays mentioned in section 8952, Revised Statutes 1889. That section merely prohibits the service of civil process, except in certain attachment cases, but a judgment rendered on one of the days mentioned in the statute is not void. [Bear v. Youngman, 19 Mo. App. 41.] ”
We agree with the latter case that there is no rule against the performance of judicial duties on legal holidays other than Sunday.
The judgment is affirmed.
PER CURIAM. — The foregoing opinion of Roy, C., on a new hearing in Banc, is adopted as the opinion of the court;
Concurrence Opinion
I concur in the opinion of the learned Commissioner in this case. I place that concurrence on the ground that the omission to formally enter of record a plea of “not guilty” upon his refusal to plead, is a “ defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits” (R. S. 1909, see. 5115). This statute in my judgment covers this case. The Commissioner cites the recent case of State v. O’Kelley, 258 Mo. 345. As I gather it the decision in that case discussed two views as tending to uphold the doctrine that the absence of a plea of “not guilty” would not vitiate the proceeding. First, that the failure to enter such plea of record was a defect of record covered by section 5115, supra, and secondly, that the conduct of the defendant amounted to a waiver of the formal plea, and the entry thereof. We note this, because in the case at bar, it cannot be said that the defendant by his conduct waived anything. It will not do in this case to bottom the decision upon the doctrine of waiver, which was a potential feature in the O’Kelley case. I therefore concur for the reason stated at the outset.