194 Mo. 228 | Mo. | 1906
On the 14th day- of June, 1904, the prosecuting attorney of Buchanan county filed an information in the office of the clerk of the criminal court of said county, in which it is alleged that the -defendant, Sol Temple, on or about the 14th day of May, 1904, at said county, “did then and there-, unlawfully, feloniously and wilfully, in and upon one J ames Grable make an assault, and did, then and there, feloniously and wilfully point at and towards him, the said James Grable, a certain . . . revolving pistol, then and there loaded with powder and leaden balls, which he the said Sol Temple in his right hand then and there had and held, with the intent then and there him,, the said James Grable, feloniously and wilfully to kill and murder, contrary to the form of the statute in such ■cases made and provided, and against the peace and -dignity of the State. ’ ’
- The defendant was duly arraigned, and pleaded not guilty. Thereafter, on the 15th day of August, 1904, defendant was placed upon trial, found guilty, and his punishment fixed at five years in the penitentiary. In due time defendant filed motions for new trial' and in arrest, which being overruled, he saved exceptions, .and brings the case to this court, by appeal, for review.
The facts of the case are but few, and are substantially as follows: On the 14th day of May, 1904, a man named Wilkerson called upon William P. Gibson, a police sergeant in the city of St. Joseph, to go to a livery "barn with him and see whether a team placed in the harn by the defendant answered the description of a team which had been advertised as stolen at Savannah, Missouri, and of which the St. Joseph police officers had .a description. In company with Wilkerson, Gibson went to a saloon in the neighborhood of the said bam, where
' Over the objection and exception of defendant, the court gave the jury six instructions, but for the purposes of this opinion it is only necessary to incorporate two, the first and second, as they alone are criticised. They are as follows:
“1. The defendant is presumed to be innocent of the offense with which he stands charged, and this presumption continues throughout the case until overcome by evidence showing him guilty beyond a reasonable doubt; and if you have a reasonable doubt of defendant’s guilt, you must acquit him; but such doubt to authorize an acquittal must be a substantial doubt founded on the evidence, and not a mere possibility of the defendant’s innocence.
“ ‘Wilfully’ as used in the foregoing instructions means intentionally, that is, not accidentally.
“ ‘Feloniously’ means wrongfully, and against the admonition of the law.”
The defendant requested the following instructions, which were refused, and exceptions saved:
“1. The jury are instructed that if they find from the evidence that an assault was committed by the defendant on officer Grable, but that said assault was committed at the same time and was part of and was co-incident with an assault made upon one William Gibson, you will find the defendant not guilty.
“2. The jury are instructed that unless you find that the assault on officer Grable, complained of in the information filed in this case, is distinct and separate from, and forms no part of the assault on one William Gibson, for which defendant has already been tried and convicted, you will find the defendant not guilty.”
The first proposition with which we are confronted is as to the sufficiency of the information, which defendant insists is insufficient, in that it fails to charge that
It appears from the record that while being conducted from the jail to the court house, and back again, as occasion demanded, the defendant was shackled and guarded by two officers, and that the shackles were removed from his hands in the presence of some of the jurors in the court room, and again placed on his hands at the adjournment of the court, while the jury was still in the court room, the effect of which was, as contended by counsel for defendant, to prejudice the minds of the jury against the defendant and cause them to1 believe him to be a dangerous and desperate man. In justification of the course pursued by the officers of the court in placing shackles upon the defendant while conducting him to and from the court house, where the trial was being held, the sheriff and one of his deputies who had charge of all prisoners confined in the jail, made affidavits duly setting forth that from information in their possession, which seemed to them reliable, the defendant iwas a' dangerous and desperate man; that he had broken jail at Pond Creek, Oklahoma, on two different occasions while confined there for crime; that on one of these occasions the said defendant, while in the court room, drew two revolvers which had recently been supplied him, and, covering the officers with same, backed out of the court
There is no foundation for the assertion that the record does not show the presence of defendant during the trial or that the jury was sworn to try the case, as it affirmatively shows these facts. It shows that defendant was present at the time the jury was sworn, and it
Defendant insists that as he had been convicted of an assault made upon officer Gibson, he “could not be convicted of another assault committed and coincident with the assault of which he is convicted; that is, out of the one transaction the prosecutor can carve but one offense.” But the facts disclosed by the record do not sustain defendant’s position. They show that there were two separate and distinct acts or assaults committed by the defendant in rapid succession. "When defendant shot Gibson, the offense was complete the instant the shot was fired, and the assault upon Grable as soon thereafter as the loaded pistol was leveled at him, with deadly intent. Defendant’s proposition, as above stated, admits that there was (mother assault committed, which surely means that there was more than one. In 1 Wharton’s Criminal Law (5 Ed.), sec. 565, it is said: “But where the act is separable into two distinct branches, as where a man at the same time assaults two persons ... he may be convicted on separate indictments for each offense.” In State v. Standifer, 5 Port. (Ala.) l. c. 531, the court says: “It is not of infrequent occurrence that the same individual, at the same time, and in the same transaction, commits two or more distinct crimes, and an acquittal of one will not to be a bar to punishment for the other.” The same rule is announced in Vaughan v. Commonwealth, 2 Va. Cas. 273, and in Greenwood v. State, 64 Ind. 250. In 11 Am. and Eng. Ency. of Law (1 Ed.), 944, it is said: “If the two crimes are entirely separate and distinct acts, however closely they may be connected, and even though some of the ingredients of the one enter into the other, a prosecution for the one will be no bar to a prosecution for the other,” etc. The test is, if upon the trial of defendant for feloniously shooting Gibson, he could not have been convicted of the crime charged in the present information, though the jury should have been satis
There is no merit in the contention that instruction number one is erroneous in defining reasonable doubt. It logically follows from what has been said, that instruction number two is free from error, and that no error was committed in admitting evidence with respect to the assault by defendant upon Gibson.
Finding no reversible error in the record, the judgment is affirmed.