State v. Mitchell

237 Mo. 212 | Mo. | 1911

BROWN, J.

Upon an indictment charging him with murdering one John Moore, and also with assaulting said Moore with intent to kill, defendant was tried in the circuit court of Texas county on November 16th, 1910, and convicted of the crime of assault with intent to kill; and appeals from a judgment fixing his punishment at three years in the penitentiary.

The evidence establishes the fact that defendant, without reasonable provocation, stabbed deceased with a knife, inflicting serious wounds; that said Moore died eight months after the assault; but the evidence is not conclusive as to whether he died from the wounds inflicted by defendant or from other causes.

The instructions, none of which are complained of by defendant, submitted to the jury in the alternative, the charge of murder in the second degree and assault with intent to kill.

The defendant seeks a reversal of the judgment because, (1) the grand jury which returned the indictment was neither impaneled nor sworn; (2) defendant was tried for murder in the second degree without first being arraigned on that charge; and (3) the venue of the crime was not proven.

OPINION.

Defendant’s first assignment of error must be disregarded, because he did not move to quash the indictment on account of the alleged failure of the court to impanel or swear the grand jury; nor did he plead those facts in abatement of the indictment. [State v. Smallwood, 68 Mo. 192; State v. Glasscock, 232 Mo. 278.]

The record shows that while defendant was in-dieted for murder in the second degree and tried on that charge, he was arraigned for murder in the first degree and assault with intent to Mil. If he had been convicted of murder in the second degree, the failure of the court to arraign him on that charge might have been cause for reversal; but as he was acquitted of the charge of murder and only convicted of assault with intent to Mil, we cannot understand how he was prejudiced by the failure to give Mm an opportumty to specifically plead to the charge of murder in the second degree.

We cannot reverse judgments on account of errors wMch do not prejudice the defendant in the trial or determination of the cause; and therefore, must overrule defendant’s second attack on the judgment.

The contention of defendant that the evidence does not prove that the crime was committed in Texas county is not supported by the record. Mrs. C. A. Moore, on behalf of the State, testified that the fight in which her husband was wounded occurred in Texas county.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

Kennish, P. J., and Ferriss, J., concur.