147 Mo. App. 422 | Mo. Ct. App. | 1910
The defendants were informed against in the circuit court for felonious assault. Having pleaded not guilty, they were tried by a jury and convicted of the offense of common assault. The punishment of the defendant, Henry Ostman, Sr., was fixed at a fine of one hundred dollars, and that of his two sons, Henry Ostman, Jr., and William Ostman, at a fine of fifty dollars each. From this judgment all of the defendants prosecute an appeal.
The first argument advanced for a reversal of the judgment assumes that the information is in four counts and that the first and third counts thereof, those charging the principal offense, are wholly insufficient for the reason they fail to conclude by employing the words, “against the peace and dignity of the State,” as required by the Constitution. It is argued that the first count charges the principal assault to have been made by William Ostman, and that the second charges Henry Ostman, Sr., and Henry Ost-man, Jr., with aiding and abetting the same. This being true, it is said the judgment of conviction thereon cannot be sustained for the reason that if the first count against William Ostman is fatally defective in that it is not concluded by the words, “against the' peace and dignity of the State,” there is then no charge against the principal offender. And if there is no charge against the principal, then, none may be sustained against the others as aiders and abettors. The identical argument relates as well to what is said to be the third and fourth counts of the indictment. Whatever may be said touching other features of the proposition advanced, it is sufficient here to reject the entire argument on the ground that it is false in an assumption of fact; that is to say, it is false in assuming the
The first paragraph of the second count charges Henry Ostrnan, Sr., with a felonious assault and the second paragraph of the same count charges Henry Ostrnan, Jr., and William Ostrnan with aiding and abetting their father in the commission of the offense. This count also properly concludes, as is required by the Constitution, with the words, “against the peace and dignity of the State.” It seems the separate paragraphs referred to have been mistaken for separate counts of the indictment. And as there were two paragraphs in each count of the indictment, they have been put forward as four separate counts thereof.
The first count charges in substance that William Ostrnan feloniously, willfully, on purpose and with malice aforethought, did make an assault on the body of Henry Schafer with a dangerous weapon, to-wit, a stick of wood of the length of four feet, of the diameter of three inches and of the weight of three pounds, said William Ostrnan did strike and wound said Schafer on the head with the intention and purpose, willfully and with malice aforethought, to feloniously kill and murder him. The second paragraph of this count charges that Henry Ostrnan, Sr., and Henry Ost-man, Jr., feloniously, on purpose and with malice aforethought were present aiding, abetting, assisting, comforting, counseling, and maintaining said William Ostrnan in such felonious assault. As stated before, after all this, the first count properly concludes by em
The second count charges substantially that Henry Ostman, Sr., with force and violence upon the body of said Henry Schafer, unlawfully, willfully and felon-iously did make an assault with intent him, the said Henry Schafer, feloniously, willfully and unlawfully to do great bodily harm and to Mil and murder. The second paragraph of the same count charges that the two sons, Henry Ostman, Jr., and William Ostman were feloniously, willfully and unlawfully present, aiding, helping, abetting, assisting, comforting, advising, counseling and maintaining said Henry Ostman in said felonious assault with the intent to Mil and murder Schafer. After all of thi's, and other proper form, the second count concludes by employing the words’, “against the peace and dignity of the State.”
There can he no doubt that under our law when several parties are jointly indicted for the- commission of an offense, the one for doing the act and the others with being present and aiding and abetting, all are regarded as principals and the conviction of the principal is not a condition precedent to the conviction of the aider or abettor or vice versa, for the act of one is the act of the other. [State v. Anderson, 89 Mo. 312-333, 1 S. W. 135; State v. Phillips, 24 Mo. 475, 481; State v. Ross, 29 Mo. 32 see also sec. 2364, R. S. 1899; Ann. St. Sec. 2364, 1906.] In such circumstances, the indictment may charge them all in one count together as principals in the first degree and thus conform to the conclusion of the law on the fact or it may allege the matter according to the fact, as was done in this case; that is to say, it may allege the offense against the principal actor as principal and the others as aiders and abettors all in the same count. It is immaterial how the charge may be made, the law regards them all as principals. [State v. Anderson, 89 Mo. 312, 333; State v. Taylor, 21 Mo. 477, 480; State
It appears that on the evening of the difficulty, Schafer met Henry Ostman, Jr., in the public road near Schafer’s home, and they engaged in a conversation about draining a lake in the neighborhood. Henry Ostman, Sr., came along the road while his son was conversing with Schafer. A quarrel immediately ensned between Henry Ostman, Sr., and Schafer, but there is evidence pro and con as to who was the aggressor. Ostman, Sr., said Schafer had accused him of stealing a plow and this was the grievance out of which the quarrel arose. Schafer was knocked down and while lying on the ground, Henry Ostman, Sr., got upon him and beat him severely in the face. It is said he hit him twelve or fifteen blows and William Ostman struck him in the head with a club which rendered him unconscious. During the quarrel and just prior to the blow of Henry Ostman, Sr., which felled Schafer to the ground, Henry Ostman, Jr., approached Schafer with his fist clenched in a threatening attitude. While the parties were all thus engaged, a brother of Schafer came along and stopped the assault. This is the substance of .the testimony for the state, and it appears that Schafer was brutally beaten. The evidence is abundant to support the verdict.
Among the errors assigned, one is to the effect that the prosecuting attorney should have been required, before the evidence was received, to elect on which count of the information he would proceed. The argument relating to this matter is that felonies and misdemeanors may not be joined in the same information unless the statute authorizes as much, and there is no statute to authorize the joining of a felonious assault and a common assault, or misdemeanor. It is sufficient to say with respect to this matter that each count in the in
The fifth instruction for the state is criticised for the reason it uses the word “ready” with reference to those who were present as aiders and abettors. The instruction substantially tells the jury that if they found one of the defendants actually assaulted Schafer with intention to kill him or do him great bodily harm and further found that the other defendants were present, aiding, abetting, encouraging or ready, if necessary, to aid, assist or encourage the defendant actually making the assault, then such defendants so present and ready to aid and abet therein, if it became necessary to do so, might be found guilty with the one actually making the assault. The word “ready” is said to he objectionable. It is true the words ordinarily used in this connection are ‘ ‘ for the purpose and with the intent to aid and assist if necessary.” However,
It is argued that there is error in tbe instruction submitting tbe question whether all tbe defendants were guilty of assaulting Schafer, as charged in tbe first count, or all guilty of assaulting him, as charged in tbe second count, instead of submitting tbe issue whether William Ostman was guilty, as charged in tbe first count, and the other two defendants of aiding and abetting him; and whether Henry Ostman, Sr., was guilty, as charged in tbe second count, and bis two sons of aiding and abetting him. Tbe argument proceeds on tbe assumption that tbe two counts charged tbe two abettors therein named as accessories before tbe fact and'therefore they could not be found guilty as principals. Tbe proposition is unsound. Instead of being accessories before tbe fact, those charged in tbe two counts as aiders and abettors were principals in tbe second degree. [Bishop; Criminal Law (8 Ed.), sec. 604; State v. Ross, 29 Mo. 32; State v. Phillips, 24 Mo. 480.] All of tbe common law distinctions as to principals and accessories before tbe fact have been abolished by our criminal code. Section 236d, Revised Statutes 1899', Ann. St. sec, 2364, 1906, and as before said, tbe parties may be proceeded against and. convicted as principals. [State v. Stacy, 103 Mo. 11, 15 S. W. 147.] Had tbe defendants been actually convicted of tbe felony tbis matter would be entirely iiu-
The statutes, section 2370, Revised Statutes 1899, Ann. St., sec. 2370, 1906, expressly permit a defendant charged with felonious assault to be convicted of the lesser offense, as here, and it has been several times decided since the statute cited has assumed its present form, that a person indicted for a felonious assault may be convicted of common assault instead. [State v. Johnson, 81 Mo. 60; State v. Grimes, 29 Mo. App. 470.] As before stated, if any one of the defendants assaulted Schafer and the others were present aiding and abetting him, they were all guilty as principals and might have been convicted as such under an information either charging the crime according to the fact as does the one before us, or charging all of the defendants as principals in the first degree. Touching this matter, the case of State v. Anderson, 89 Mo. 312, 1 S. W. 135, is in £oint.
The case seems to have been well and carefully tried and the judgment should be affirmed. It is so ordered.
