State v. Wilson

126 Mo. App. 302 | Mo. Ct. App. | 1907

GOODE, J.

(after stating the facts). — This defendant was informed against for felonious assault. He is a police officer of the city of St. Louis, as the instructions show, the evidence not having been preserved in the bill of exceptions. The information is challenged as insufficient to support the verdict, which found the defendant guilty of a common assault only, and imposed a fine of one hundred dollars and imprisonment for six months in jail. We need not notice the first count of the information, because it was withdrawn from the consideration of the jury. There are two other counts of which the second is for assault with intent to kill and charges that defendant feloniously, wilfully, on purpose, and of malice aforethought, with a deadly weapon, to-wit; a revolver-pistol, loaded with gunpowder and leaden balls, made an assault on Oliver J. Beck, by pointing said revolver-pistol at the body of said Beck in an angry, violent and threatening manner, with the intent the said Oliver J. Beck, wilfully, on purpose and of malice aforethought to kill, contrary to the statute in such case made and provided and against the peace and dignity of the State. The third count is in the same form, except that instead of charging the assault, in manner and form stated, was with the intent to kill Beck, it is charged that his life was endangered by the assault. The second count of the information is excepted to because it does not allege the defendant, when the assault was committed, was within such distance of Beck as either to endanger the latter’s life, or maim, wound or disfigure him. The information follows the language of the statute, is not materially different from one approved by the Supreme Court in State v. Temple, 194 Mo. 228, 92 S. W. 869, and contains all the averments ruled to be necessary in an indictment for similar acts in State v. Dooley, 121 Mo. 591, 26 S. W. 558.

The second point made in the brief for defendant is that if the information charges an offense at all, it is simply common assault, and therefore the circuit court for criminal cases of St. Louis was without jurisdiction. What we have said above disposes of this point. The indictment was for a felony; but as the crime of which defendant was found guilty was involved in the commission of the felony charged, he was properly convicted of the offense of lower degree. [R. S. 1899, sec. 2369.] It has been held that under an indictment for assault with intent to kill, founded on section 1847, oí the Revised Statutes of 1899, a defendant may be convicted of the felonious assault covered by section 1848 or of common assault covered by section 1850. [State v. Melton, 102 Mo. 683, 15 S. W. 139; State v. Schloss, 93 Mo. 361, 6 S. W. 244; State v. Burk, 89 Mo. 635; State v. Sears, 86 Mo. 169.] Pointing a loaded pistol at Beck might be either a common or a felonious assault-according to the intention with which the act was done. [State v. Dooley, 121 Mo. loc. cit. 596; State v. Epperson, 27 Mo. 255; State v. Llewellyn, 93 Mo. App. 469, 67 S. W. 677.] Hence defendant might be found guilty of the former crime as included in the latter. [R. S. 1899, sec. 2370; State v. Burk, supra; State v. Brent, 100 Mo. 531, 13 S. W. 874.]

Complaint is made of the first instruction on the ground that it was broader than the information, in requiring the jury to .find the pistol was-pointed at a vital part of the person of Beck and when within shooting distance of him. This criticism reaches back to the question of the sufficiency-of the information. We have been cited to no authority for the proposition that it is necessary to allege those facts. On the contrary we find decisions approving instructions which required them to be found, though not alleged, when the evidence made such a requirement proper. State v. Dooley; State v. Sears, supra. The evidence not having been brought up, we are unable to say what its tendency was in regard to showing whether or not defendant was so far away from Beck at the time the latter was threatened with a loaded pistol, as to render the act harmless. It is to be presumed there was evidence to prove he was not that far away. We have copied no instructions but the first and third, because the court authorized a conviction for common assault in no instruction but the third and then only in case the acts of violence predicated in the first, as essentials to be found in order to convict of a felonious assault, were found to have been done by defendant with an intent to kill or do great bodily harm. The court committed no error in advising the jury that if an assault, in the manner predicated in the first instruction, was made without the intention to kill Beck, or do him great bodily harm, defendant could be convicted of common assault. This instruction was proper because the facts the jury were required to find in the first instruction, if committed with no felonious intent, contained all the elements of a common assault.

The instructions not quoted require no examination in view1' of the points made on the appeal. It is insisted that the verdict was fatally defective in failing to state on which count of the information the defendant was found guilty. As a common assault would have been involved in either of the felonious assaults charged in counts two and three of the information, and as both counts relate to the same acts, a general verdict of guilty was valid. [State v. Schmidt, 137 Mo. 266, 38 S. W. 938.] Moreover, it is to be remarked that no point is made in the motions for new trial or in arrest in regard to the verdict not specifying the count.

There being no reversible error in the record, the judgment will be affirmed. It is so ordered.

All concur.