217 Mo. 332 | Mo. | 1909
At the April term, 1907, of the circuit court of Perry county, an indictment was returned charging that the defendant, at said county on January 11, 1907, feloniously and willfully assaulted one Maggie Shine, and with a rawhide whip, of the length of three feet and of the diameter of three-fourths of an inch at the large end thereof, and of
At the same term of court, the defendant applied for and was granted a change of venue from the regular judge of said court, and it appearing that the defendant and the prosecuting attorney could not agree upon any attorney as a special judge, the cause was set down for the 8th of July, 1907, and the Honorable Joseph J. Williams, judge of the 21st Judicial Circuit, was ‘called and requested by Judge Killian to hold said court, and on the 8th of July, 1907, Judge Williams appeared in response to said request and assumed the direction of the said, cause. The defendant then made another application for a change of venue from said county on the ground that the inhabitants thereof were prejudiced against her. This application was heard and overruled and the cause was then continued until the October term, 1907. On the 21st of October, 1907, the defendant was arraigned and her plea of not guilty was entered. A jury was impaneled and the cause heard and.resulted in a verdict of guilty of wounding and disfiguring Maggie Shine both by whipping her with a whip and by burning her with a hot stove-lid lifter as charged in the indictment, and assessing her punishment at imprison
The evidence, on the part of the State tended to prove that on the 11th day of January, 1907, Maggie Shine was a girl not quite thirteen years old. On that date she was living with Joseph Nieuhaus and his wife, the defendant, at their home at Point Rest, in Perry county. She had lived with them two or three years. She was an orphan, her mother and father both having been dead a number of years. Mr. Nieuhaus conducted a store at Point Rest and used the second story of his store building for a residence. On the 11th of January, 1907, which was Friday, in the afternoon Mrs. Nieuhaus left her baby in Maggie’s care and directed her to put some ironed clothes away, and then went down stairs. Upon returning up stairs and finding that her clothes had not been put away, she inquired of Maggie why it had not been done. Maggie explained that the baby had been cross and required her whole attention, whereupon the defendant said, “Now, I am going to whip you and burn you, you know that work was to do.” Defendant went down stairs where she remained for a short time and until her husband left the store and went to the willows, several hundred yards distance. Returning up stairs the defendant sent her little boy, Henry, down stairs to watch the store. She then took Maggie into a room, required her to strip off her clothes and put her across the bed face downward. From her drawer she took a cowhide whip and with it beat Maggie’s bare flesh. Maggie screamed, whereupon the defendant sitting upon her head to smother the screams continued to belabor her with the whip, and threatened her with a burn for every time she screamed. Letting
The defendant in her own behalf testified that she had never burned Maggie at any time, and had no idea as to the cause of the burns unless it was the fact that Maggie had knocked down a bottle of carbolic acid while dusting off a shelf. She remembered that some of the acid had spilled en Maggie’s arm. She adifiitted that she had whipped 'Maggie some -time in January, the exact date she had forgotten, with a small riding whip, but the whipping was not severe. She testified she whipped her in order to break her of the habit of lying, the immediate cause of the whipping being that Maggie had poured coal oil in the stove in order to kindle the fire and denied that she had done so when accused by the defendant of having done so. She explained the cut of Maggie’s fingers by saying it was done while cutting kindling, and that Maggie had told her that she made the bump on her head by running against a tree at school. She admitted also that one time she had paddled Maggie with a stick, which she described as a little piece of pine about a quarter of an inch thick and about an inch wide and about a half-yard Jong. She said that she did not examine’Maggie after she had whipped her and Maggie had never complained to her of having wounds or sores or sears or of anything hurting her. She explained her failure to have the whip at the trial by saying that no one had requested her to bring it. She denied that she had whipped Maggie because she had not put away the ironed clothes and averred that Maggie had been in the habit of lying and on the occasion that she whipped her admitted she had lied about putting the coal oil into the stove.' She said she had taken Maggie to raise and was very fond of her and had always treated her with kindness and gave her the same motherly care and treatment which she accorded to her own children; and that she had never had occasion
Maggie Shine testified that the occasion of her playing and singing with Esther Hagar was on the Sunday before she was whipped and not on the Sunday afterwards. As to the spilling of the carbolic acid Maggie explained that the acid bottle fell upon the wood box, under the shelf, where it spilled, and that none of the acid struck her. Mr. Nieuhaus corroborated the testimony of his wife as to the spilling of the bottle of carbolic acid by Maggie and as to Maggie being whipped for putting coal oil in the stove and then lying about it, and as to the treatment of Maggie by the defendant.
I. This prosecution is for violation of section 1849, Revised Statutes 1899, which provides, “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,
As to the specific complaint that the indictment is fatally defective in that two separate and distinct felonies are charged in one count, we think that one single offense is charged, for while either maiming, wounding or disfiguring may by itself constitute an offense all of them together in this indictment constitute but the single offense of wounding and disfiguring the prosecutrix. The allegations are not repugnant and the count is not double. As said in State v. Myers, 198 Mo. l. c. 258, “It is well settled in this State that an assault may be charged to have been with different kinds of weapons.” Joyce on Indictments, sections 399, 490, 401, says, “Where an offense charg-ed may-be committed by two different means, its commission by both means may be charged in one count of an indictment, and proof of either will sustain the allegation. In such a case it is said that proof that any of the means were used proves the offense, and that proof that all the means described were used proves no more, the penalty also being the same.” And Bishop, in his Criminal Procedure (4 Ed.), volume 1, sections 434, 438, says, “Some single offenses are of-a nature to be committed by many means, or in one or another of several varying ways. Thereupon a count is not double which charges as many means as the pleader chooses, if not repugnant.” And such was the ruling of this court in State v. Van Zant, 71 Mo. 541.
“If you believe and find from the evidence, that the defendant Olive M. Nieuhaus,- in Perry county, and State of Missouri, within three years next before the 9th day of April, 1907, did willfully and feloniously whip- Maggie Shine with a whip by which said Maggie Shine was wounded, or disfigured, then you will find the defendant guilty, as she is charged in the indictment, of wounding, or disfiguring, said Maggie Shine by said whipping, as you, from the evidence, shall believe her to have been so wounded or disfigured. And if you shall believe and find from the evidence, Olive M. Nieuhaus, at said time and place, and upon such whipping, by her, of said Maggie Shine, and in continuance by her of the punishment so inflicted upon said Maggie Shine by said whipping, did willfully and feloniously, burn said Maggie Shine with a hot iron stove-lid lifter, by which said Maggie Shine was wounded or disfigured, then you will find the defendant guilty,'as she is charged in the indictment, of wounding, or disfiguring said Maggie Shine by said burning, as from the evidence you shall believe and find her to have been so wounded or disfigured.
“If you find the defendant guilty of either wounding or disfiguring said Maggie Shine, by either said whipping or burning, you will fix her punishment therefor at imprisonment in the penitentiary not less than two years nor more than five years, or at imprisonment in the county jail not less than six months, or at both a fine not less than one hundred dollars, and imprisonment in county jail not less than three months, or at a fine of not less than one hundred dollars.”
And in the next instruction, the court instructed the jury that:
“If defendant struck Maggie with a whip or burned her with the hot stove-lid lifter, with such severity as to break, cut or burn entirely through the*347 skin upon her body and to her flesh, then said Maggie was wounded within the meaning of the other instruction and if the lick of the whip or the burns left a scar or scars, then she was disfigured within the meaning of the instructions.”
It is insisted the court' erred in giving these instructions for the reason that the evidence conclusively showed there was neither felonious wounding nor disfiguring of the prosecutrix.
This court in State v. Leonard, 22 Mo. 449 (1856), defined what would constitute a wounding under the section on which this prosecution is based, in the following words: “As to what constitutes a wounding under this statute, we may suppose from the evidence that the prosecutrix was wounded in the legal sense of the term;, for she says that ‘there is a scar left'still’ made by the wound. In Rex v. Payne, 4 Car. & P. 558, it was held, ‘if a person strike another with a bludgeon, and break the skin and draw blood, it was a sufficient wounding to be within the statute 9 Geo. IV., ch. 31, sec. 13. Under this act it is not at all material what the instrument is with which the party is wounded. The punishment under the statute of 9 Geo. IV., chap. 31, see. 12, was in some cases death; a wound from a kick with a shoe on will be within the same statute. [Rex v. Briggs, 1 Moody’s Crim. Cas. 318.] In criminal cases, the definition of a wound is an injury to the person by which the skin is broken. [Moriarty v. Brooks, 6 Car. & P. 684; Rex v. Withers, 4 Car & P. 446.] . . . Dr. Johnson defines a wound to be ‘a hurt by violence. ’ In the case before us, the instrument was a stone about the size of the fist of a woman — for thus the witness described it — and it was thrown with such violence as to knock the woman down; and when she was afterwards examined on the trial as a witness, about a year after she received the blow, she said, ‘It bruised me severely; there is a scar there yet.’ There
But the contention of the defendant is that there was no evidence that the whip with which the prosecutrix was wounded, or the stove-lid lifter with which the evidence tended to show she was burned, was a deadly or dangerous weapon, and for this reason, the said instructions above noted were erroneous. As already said, this court has uniformly ruled that it was unnecessary to charge that the assault was made with a deadly weapon or with malice aforethought or that the indictment should state that if death had ensued it would have been murder or manslaughter. In this case the pleader has stated with particularity the weapons used and the circumstances, and the court in these instructions left it to the jury to. say whether the wounding and disfiguring was unlawfully and feloniously' done. In our opinion the statute does not require that the wounding should have been done with a deadly weapon, nor in this case, where the charge is the wounding and disfiguring, that it should have been charged that the assault was made with intent to Mil. And the jury found that the defendant had feloniously wounded and disfigured the prosecutrix by the use of a whip and the hot stove-lid lifter. It goes without saying that had death ensued from these acts of the defendant, the homicide would have been either murder or manslaughter, but it was not necessary for the jury to so say because it was not necessary to allege the same. To hold that the wounding and disfiguring with the instruments alleged and proven in this case is not witMn the statute, would be to nullify its plain provisions. We think the instructions were not erroneous and this ground of appeal is not tenable.
III. As to the assignment that the evidence did not shoyr any disfiguring of the prosecutrix, we are wholly unable to agree. The word “disfigure” has no
IV. ' Tbe prosecutrix, after testifying that tbe defendant bad whipped her, was asked, “Did she [meaning tbe defendant] ever put anything on your sores or do anything relative to your burns?” To which tbe defendant’s counsel objected in these words: “The effect, if any, has nothing to do with tbis case.” Tbe objection was overruled and tbe defendant excepted. Tbis a,ction of tbe court is assigned as error. We are unable to see tbe ground upon which tbe exception was taken. Certainly tbe language of tbe counsel does not indicate any legal ground for excluding it. Of course tbe offense was committed, if at all, irrespective of what tbe defendant afterwards did, but we cannot see bow tbis question and answer could have bad any material effect upon tbe verdict of tbe jury. Certainly it is not sufficient to reverse tbe judgment.
V. It is next insisted that tbe court erred in refusing to permit defendant’s counsel to cross-examine tbe prosecutrix as to her habit of lying and as to her being whipped on tbe occasion complained of for lying. Tbe court permitted tbe counsel to interrogate tbe witness fully as to tbe reason given by tbe defendant for whipping on tbe day of tbe assault, but tbe counsel desired or offered to prove that previous to that time tbe prosecutrix bad an inveterate habit of lying, and tbe court ruled that whatever her habit bad been before that time, and whatever punishment tbe defendant bad inflicted on her for that habit, bad nothing to do with tbe case before tbe jury, and we think tbe court correctly ruled. Tbe defendant herself was a witness on tbe stand, and testified she bad whipped tbe prosecutrix for lying to her that "day about putting coal oil on tbe stove. She made no pretense of having
The defendant testified to the facts upon which this instruction was based and gave her version of the cause for the whipping. The prosecutrix testified that the cause alleged by the defendant at that time was because she had not put away the ironed clothes. The court ruled that the defense would be allowed to ask the prosecutrix what she was whipped for that day, but would not permit proof of what had occurred previous to that time. We think the defendant had the full benefit of her explanation as to the cause for administering the whipping, and the instruction given by the court was as favorable as she had any right to demand.
YI. It is next assigned as error that Mrs. Moran-ville and Martina Tucker were permitted to testify over the objection of the defendant as to the probable instruments with which the welts and sores on Maggie Shine were inflicted, when neither of them had qualified as experts. Mrs. Moranville in her direct examina
Mrs. Martina Tucker, a married woman of some 48 years, testified that she also made an examination of the prosecutrix on or about the 22nd of January in connection with several other ladies, and that she
Dr. Vessels examined these wounds and fully corroborated all that Mrs. Moranville and Mrs. Tucker had said in regard to them and also testified that a wound made by an acid left a different effect on the body than an ordinary bum and testified further that he did not believe that it was possible to pour liquid on the girl and cause the shape and condition of these scars that he found on her body. Dr. Morton fully corroborated Dr. Vessels and the other witnesses, and gave it as his opinion that these wounds had not been occasioned by scalding or done with an acid or liquid. We think that the testimony of Mrs. Tucker was competent. She had merely given her opinion that the scars were burns as the result of her' ordinary observation and experience, and, as we have said in regard to Mrs. Moranville’s evidence, we think that her experience and observation were sufficient to entitle her to give her opinion as to what had caused these wounds. Certainly we think there was no reversible
VLE. Error is also alleged as to the exclusion of testimony of Emanuel Lash. This witness was called to show the unfriendly feeling existing between Mrs. Moranville and Mrs. Nieuhaus and their respective husbands. And he testified without objection that they were at outs and that the trouble seemed to have arisen in regard to a binder that Mr. Nieuhaus had sold to Mr. Moranville. The objection on the part of the State was that the witness was detailing a trouble between another Moranville and the defendant, and the court excluded it as immaterial. When Mrs. Moran-Ville was on the stand she was asked if she had been on speaking terms with Mrs. Nieuhaus for about five or six months and she answered, “No, sir, not since this trouble commenced, ’ ’ and she stated that prior to that time she and Mrs. Nieuhaus exchanged visits; that Mrs. Nieuhaus had been to her home twice since Moranville had moved out of Mr. Nieuhaus’s property. She admitted that she had signed an affidavit charging Mrs. Nieuhaus with this assault, but that the prosecution was begun in another court and nothing came of the proceedings commenced by her. The defendant testified that she and Mrs. Moranville had not been on speaking terms for a year since last August; that in August, the year before, the defendant’s mother visited her, and as Mrs. Moranville was some way related to her mother the defendant went with her mother to visit Mrs. Moranville, but that the latter never spoke to her during the visit, and that there was an ill-feeling between them for six months before the trouble came up. Taking into consideration that the witness Lash was permitted to state that the defendant and Mrs. Moranville were “at outs” and to detail the cause of the trouble
VIII. Finally, it is insisted that the court erred in failing and refusing to instruct the jury upon a common assault. The defendant requested an instruction to this effect, which the court refused. It is to be noted in the first place that the indictment in this case is for felonious wounding and disfiguring and is not an indictment for an assault with intent to kill, either with or without malice aforethought. While there are numerous cases which hold that where the evidence is doubtful as to the grade of the assault, it is proper for the court to instruct for simple assault and battery and the jury may so find, but it is also equally well settled in this State that where the evidence on behalf of the State if true establishes a felonious assault, the court should not give an instruction for common assault. [State v. Barton, 142 Mo. l. c. 455, 456; State v. Duncan, 142 Mo. l. c. 461, 462; State v. Higgerson, 157 Mo. l. c. 402; State v. Musick, 101 Mo. l. c. 270.]
•We have thus endeavored to carefully consider every proposition advanced on behalf of the defendant and have reached the conclusion that there is no reversible error in the record, and that the judgment should be and it is therefore affirmed.