State v. Warren

57 Mo. App. 502 | Mo. Ct. App. | 1894

Ellison, J.

— The defendant was indicted and convicted for an affray under section 3760, Revised Statutes, 1889.

The indictment charges that defendant and one Charles Epperson “on the twenty-first day of May, A. D. 1892, at the said county of Harrison, in a certain public road and highway, there situate, did then and there voluntarily and unlawfully engage in a fight with each other, and did then and there use blows and violence towards each other, in an angry manner, to the terror and disturbance of the people then and there being, against the peace and dignity of the state.”

It will be noticed that the charge of place is “a certain public road and highway.” The statute reads, “in any public place;” and upon this defendant makes an objection to tbe indictment. We think the objection unsound. The court will take notice that a public road and highway, is a public place. The allegation may be in the language of the statute “that the place was public, or it may set out facts making . it so in point of law.” 2 Bishop, Crim, Proc., sec. 19.

The. court gave for the state, over the protest of the defendant, instruction number 2, to which counsel now object as omitting essential elements of the crime as charged, viz: that the acts charged must have been done to the terror and disturbance of others. This objection is well taken. By omitting this from the instruction, the jury was authorized to find the defendant guilty of this offense without regard to the matte? omitted, which is an essential element in this particular offense.

Objection is also made to the third instruction for the state, in that it authorizes a conviction without reference to whether the acts were committed at a public place, or whether the acts were committed to the terror and disturbance of others. And that both this and the first instruction have coupled an ingredient to the offense which is not charged in the indictment, in this, that it submits to the jury the hypothesis of the parties charged having done “each other any willful mischief by violence.” This element, though found in the statute, was not a part of the charge going to make up this offense as set out in the indictment. These objections were well taken.

The defendant was a witness in his own- behalf. Eor the purpose of impeaching his credibility the state offered in evidence a record of a former conviction of him. The admissibility of this evidence under the decision of the supreme court in State v. Taylor, 98 Mo. 240, depends upon whether the conviction was of an infamous crime as that term is known to the law in reference to its effect upon persons offered as witnesses. The record here fails to show us of what crime the defendant was convicted, and we are hence unable to say whether it was an infamous crime, which, as we have stated, it must be under the decision aforesaid, in order to be admissible. The record before us only shows a verdict finding “the defendant guilty” and assessing “his punishment at a fine of $150,” anda judgment on the verdict. We- have nothing before us to show of what crime he was found guilty. It is true, that in styling the case on the record the clerk of the court has chosen to place the words, “Felonious assault” to the right of the style of the case. But if we could notice this at all, we would yet be uninformed of what sort of assault. There are a great many assaults of widely different nature that might be termed felonies. It may not follow that all crimes which our statute has called felonious, by reason of the punishment which may be assessed, are infamous crimes as known to the law. The record as presented, should not have been admitted.

Judgment reversed and cause remanded.

All concur.