22 Mo. 462 | Mo. | 1856
delivered tlie opinion of the court.
Tkis was an indictment for a felonious assault. Tke defendants appeared and pleaded not guilty. They were convicted and fined each the sum'of five hundred dollars. A motion for a new trial was made and overruled. A motion likewise in arrest of judgment was made and overruled. Exceptions were taken and the case was brought here by writ of error.
There being here no evidence saved, it is not in our power to say whether the instructions were proper or not. Indeed we can not tell which were given or which refused. Some have marks near to them on the margin, thus, “ + others, the word “rejected” on the margin ; others, both the cross mark and the word “rejected.” But the record nowhere states which were given or which refused. The indictment is copied in the record some three or four times, in answer to the various writs of certiorari which were from time to time awarded, and the reasons in arrest of judgment are also very prominent in the various efforts to complete the record.
From the reasons in arrest of judgment, a very important item, one indeed which was, in all probability, the ruling cause of bringing the case before this ..court, is the unconstitutionality of the county of Dent. There is nothing on the record to raise or support this question, and it strikes us as a novel proceeding for any of the courts of this state to undertake to kill off any one of the counties of the state established by law, by a mere motion in arrest of judgment in a criminal case for a misdemeanor. (See the case of the State v. Rich & Rich, 20 Mo. 393.) The motion for a new trial, on account of newly discovered testimony, has nothing in it. ' The record nowhere shows what the newly discovered testimony is ; we therefore can not pass upon the action of the inferior court in overruling the motion. We have disposed of all the questions before us which we can see upon this record, except the sufficiency of the indictment. We will now consider this question. The in
We think that this indictment is substantially good and sufficient. It is under the S7th section of the 2d article of the act concerning crimes and punishments. Here, the weapons used are averred to be deadly weapons ; the beating is alleged to have been done on the head, face and body, and done with the intent of feloniously to kill. Had the killing taken place here, a felony would have been committed. There is nothing then in the motion to arrest on account of the insufficiency of the indictment. (See Carrico v. State, 11 Mo. 599; Jennings v. The State, 9 Mo. 862; The State v. McGrath and others, 19 Mo. 678; Johnson v. The State, 7 Mo. 183.)
The judgment of the Circuit Court must be affirmed ;