text:
    The State, Respondent, vs. Harlow, Appellant.
    1. The separation of the jury in a<murder case held no ground for a new trial,there being no ground to suspect that they had been tampered with.
    2. Intoxication-is no justification or extenuation of a homicide.

      Appeal from Chariton Circuit Court.

    The facts are stated in the opinion of Judge Ryland.
    Clark, for appellant.
    1. The court erred in giving the 5th instruction for the state. (Wharton’s Crim. Law, 395. Monroe v. State, 5 Geo. 2 Comst. 202.) 2. The 7th instruction was erroneous. (18 Mo. Rep. 423. 8 Smedes & Marsh. 401.) 3. The 3d instruction ashed by defendant should have been given. 4. The 4th instruction asked by defendant should have been given. (11 Humpb. 154.) 5. The 9th and 18th instructions for defendant should have been given. 6. A new trial should have been granted for the misconduct of the jury. (9 Smedes & Marsh. 465. 13 ib. 398.)
    Gardenhire, (attorney general,) for the State.
   Ryland, Judge,

delivered the opinion of the court.

Kinsolving Harlow was indicted at the May term of the Circuit Court of Chariton county, in the year eighteen hundred and fifty-five, for the murder of Green B. Andrews. He was tried at the same term and was convicted ; the jury finding him guilty of manslaughter in the first degree, and assessing his punishment to ten years’ imprisonment in the state penitentiary.

The defendant moved for a new trial; also, in arrest of judgment; which motions being denied, he excepted, and has brought the case here by appeal. His counsel in this court contends that the Circuit Court erred in giving and in refusing to give instructions, and relies principally upon these errors, as alleged by him, for a reversal of the judgment below. He also alleges the separation of a part of the jury from, the rest, and the conversing of one of the jurors with a person, not an officer of the court, and without the permission of the court, as a sufficient cause for a new trial, and that the refusal of the lower court to grant a new trial for this cause is error.

In regard to the separation of the jury, it appears that sometime during the trial, while the jury were confined in their room in the hotel, the sheriff went out of the room with two or three of the jurors, a short distance, and stayed a short time, leaving the rest of the jury in the room, with no officer of the court with them; that the sheriff was in sight of the room all the time; that persons might have entered the jury-room and conversed with the jurors, -without the sheriff seeing them or hearing them ; but the sheriff stated that he believed no such thing was done in this case. The conversation of the juror was in hearing of others ; it related to- a different matter altogther. It seems that one of. the jurors had. come to- the town where the trial was to take place, in a buggy, with Henry Shrader; that the juror told Shrader not to leave him, to go-to the hotel and stay one day longer and he would pay his expenses, by which time he (the juror) thought he would be able to return home with him. This was all the conversation held by the juror.

There is no pretence that the jury were tampered with in this case. In our state, the conveniences for the accommodation of jurors and witnesses, during their attendance at courts, in many of the counties, are very inferior; no court houses in some, and the taverns and public houses are the only places where rooms can be obtained at all, and these of the most inconvenient kind. Were this court to apply the old strict and rigid rules, in regard to the conduct of jurymen in criminal cases, which have been observed in England and in some of the older states of the Union, it would, in effect, turn loose the guilty upon the community, without a probability of punishment. It would virtually put a stop to the punishment of offences.

The trial of offences should be conducted with the utmost care to avoid all improper influences bearing on the minds of the jurors ; and where such influences have been used, or any tampering with jurors made to appear, the courts should correct such abuses by granting new trials.

The possibility of the use of such influences, or of the tampering, will not alone be sufficient to warrant the granting of new trials ; but wherever facts warrant the belief of any improper interference with the deliberations of the jury, there the new trial should be given. Such has been the doctrine of this court heretofore, and it will still continue. See State v. Igo, decided at this term. So far, then, as regards the conduct of the juror, in this case, there was nothing which would justify the lower court in granting a new trial; nor was the bare possibility that, whilst the sheriff was out with two or three of the jurors for a short time, and at a short distance from the jail-room, in the hotel, persons might have entered the jury-room and talked with them about the trial, sufficient ground for the Circuit Court to sustain the motion for a new trial.

In order to determine properly the questions arising upon the giving and the refusing to give the instructions in this case, I have thought it most proper to state the evidence as preserved in the bill of exceptions. Before I do this, let me once more condemn the useless and worse than useless practice of stretching out a few propositions of law, applicable to the case, into a string of instructions, which generally becomes weaker as it grows in length. Here are asked for eight and twenty instructions ! — eight for the State, and twenty for the defendant, and, altogether, twenty-one given to the jury. This, in a case involving. but two or three simple propositions of law, which could be well and plainly laid before the jury in a few pointed, pithy and clear instructions, is condemned as meriting our serious disapprobation. The following is the evidence : The State introduced Daniel J. Hays, who being duly sworn, stated that the last of July, or the 1st of August, some two years ago, as he was coming from Glasgow, when he got to the brink of Chariton river, he saw Green B. Andrews and the defendant in the boat, about to start over the river : he spoke to them, and asked them to wait for him ; that the boat was detained and he rode in the boat, on his horse, by Andrews and defendant, who were standing together, talking : he spoke to them as he passed them in the boat, but neither spoke to him. As soon as he passed them, he got down off his horse and turned around; as soon as he turned around, he saw a knife, of considerable size for a pocket knife, perfectly new, drawn open in the defendant’s right hand. Defendant said to Andrews, you have a knifeAndrews said he did not have one; defendant reached out his hand and put his finger in Andrews’ waistcoat pocket,, as witness thought, to feel for a knife. Just at this time, Andrews raised his hands to his side, as if to show he had no knife, when a knife, two or three inches long, slipped from under his. sleeve, point foremost, being open; and as soon as Andrews saw his knife, he turned and ran out off the boat, and defendant was running after him; and just as Andrews reached the-end of the boat at the bank, defendant struck him overhanded, with a knife in his right hand, in the left side of his neck, and Andrews told defendant not to strike him any more. When Andrews started to run out of the boat, he and defendant were nearest the end of the boat he went out at, and he thinks he ran from fifteen to thirty feet before defendant struck him; that the boat was about thirty or thirty-five feet long ; that, so soon as Andrews was struck and got on the east bank, the boat was shoved off by the defendant, witness and Harlow in it, leaving Andrews and the ferryman on the east bank. - The boat landed at the point made by the junction of the east and west forks of the river, where witness got out, leaving defendant in the boat. At this time, Andrews spoke to witness, to return to him — that he was badly hurt; but the defendant shoved off the boat and carried it to the west side of the west fork of the river, and then left. Witness saw defendant no more; that he, witness, immediately went a short distance on the west fork, and got a Mr. Menifee, who was on the west side of west fork, to come down and cross the boat to him, and that witness and Menifee then went to Andrews ; that when they got to Andrews, they found him stabbed in the neck, as above stated, very badly, and seemed to be suffering very much ; that witness remained with him a short time after, and left before he died. He believes the wound was mortal, and that it killed him ; that no one was on the boat, when he first went in it, but Andrews, the defendant, a negro man, (the ferryman,) and himself ; that he was drinking, somewhat intoxicated, but not so drunk but that he could recollect what took place, and remember distinctly that he had his horse in the boat with him, and took him out of the boat when he got out, and that he met no one that evening between the river and home ; that he did not consider a man drunk as long as he could talk and get about; that Andrews and defendant were both somewhat intoxicated, but not drunk ; that witness had liquor with him and drank after Andrews was struck, and before he finally left Andrews. This killing was done in Chariton county, in the state of Missouri.

The State then called Col. John Moore as a witness, who being duly sworn, stated that the afternoon of the day on which Green B. Andrews was killed, he rode up to the office of one William A. McLure, near Monticello, having heard that two men were down the road, in the direction of Glasgow, about to fight: he looked in that direction and saw two men coming up the road in the direction of where witness was, who proved to be Green B. Andrews and the defendant; that when the said Green B. Andrews and defendant came up near where witness was, the defendant turned up the Monticello road and rode in a gallop, and Andrews continued in tbe road leading to tbe ferry; that a short time afterwards, tbe defendant came back from the direction of Monticello and rode up near tbe witness, when witness-(speaking to defendant) said: “Doc., you let Andrews back you out this time. ” The defendant replied, “ By God, you will see who backed out before we get to the ferry.” The defendant started off in a gallop in the direction Andrews had gone. He saw Andrews after he was stabbed. The cut was upon the neck; that when he saw Andrews and Harlow at Monticello, referred to above, they were each drinking, and a little intoxicated, but he did not consider them drunk.

The State then introduced William A. McLure as a witness, who being duly sworn, stated that on the afternoon of the fatal rencounter between Andrews and defendant, he was at his office near Monticello. In looking down the road leading to Glasgow, he saw two men, as he thought, in the act of fighting, near the house of the widow Smith. Fearing that Mrs. Smith might become alarmed at the fighting, he requested Mr. W. Y. Hall and James Morrison to go down and try and prevent their fighting at that place. Before Hall and Morrison got very far, he saw them get on their horses, and rode -up not far from where witness was standing, when defendant turned up the road leading to Mo-ntieello, and Andrews down the road leading to Chariton ferry. The defendant shortly after came back from the direction of Monticello, and on approaching near Col. Moore, Col. Moore remarked to him, (defendant,) “ Doc., you let Andrews back you outthat defendant replied, “ By God, you will see before we cross the ferry.” He then started off on the road Andrews had gone, in a gallop. He saw Andrews after he was stabbed ; he -was stabbed in the neck, and believes he died from the effects of the stab, soon after dark of that day. The difficulty occurred when the sun was about two hours high. Defendant and deceased were both drinking; but did not consider either drunk.

The State next introduced 'W. Y. Hall as a witness, who being duly sworn, said that on the afternoon on which the fatal difficulty occurred, at the request of one McLure, be started? down the road leading from Monticello to Glasgow, for the-purpose of attempting to keep two men from fighting opposite-the house of the widow Smith, on said road". After going a. short distance, he found that the two men were Green B. Andrews and the defendant, who had dismounted their horses— the defendant holding a knife in his hand and Andrews a raid in his. After advancing a little further towards the parties, the parties mounted their horses and came up the road leading by McLure’s office, at which place Andrews turned down the-road leading, to- the Chariton ferry, and Harlow turned up the-road leading to Monticello. A short while after this, the defendant came riding back, in a gallop, and halted as he approached Col. Moore, who was near the office of W. A. McLure. Moore remarked to defendant, ‘‘You- let Andrews back you> out.” Defendant remarked', “By God, you will see before we-cross the ferry, which backs outthat he did' not remember having told Moore, Harlow- had backed out; that Andrews and: Harlow were both drinking,, but did not consider them drunk.

The State then introduced James Morrison as a witness,, who being duly sworn, said, at the request of McLure, he went with Hall to part two men, who seemed to be about to fight opposite the house of the widow Smith, on the road leading to Glasgow. The parties were dismounted; defendant had a> knife in his hand, and Andrews had a rail in his before reaching the parties, they mounted their horses and came riding up together to McLure’s- office, when defendant turned up to Monticello, and Andrews turned down- the hill to the ferry. Don’t remember whether witness or anyone told Moore, defendant had backed out. After some short time, defendant returned from Monticello, and on approaching Col. Moore, the Col. remarked,., “Doc., you let Andrews back you out,” or, “you reniged,”' he did not distinctly know which, but thought it was “ reniged defendant replied, “By God, you will see, before we get to-the ferry,” or “to home,” he did not remember which, distinctly, and rode off in the direction Andrews had. gone,.

Thomas Wright was then introduced as a witness, who being-sworn, said that he was with Andrews when he died; that he-died of the wound on the neck : he saw Daniel J. Hays there; that he considered him as being very drunk; that Hays’ horse was on the opposite side of the river from where Andrews was lying; that the wound on Andrews’ neck had been sewed up before he got to him ; that Andrews died a short time after dark.

The State next introduced C. A. Chapman as a witness, who being sworn, said that as he was returning from home from-Glasgow, saw a boy riding very fast for a doctor; he heard there had been a fight, and Andrews was stabbed. I stopped' awhile in Monticello and then went to the ferry, where I saw Andrews lying on the bank of the river, and had a wound, as I thought, on the right side of the neck, which had been sewed up. Andrews was then cold and pulseless and weak, and I believe he died of the wound.

The State next introduced Thomas S. Alienas a witness, who-stated that the afternoon on whieh Andrews was killed, he met Andrews on the road leading from Monticello to the ferry, at the foot of the hill, about three quarters of a mile from the-ferry, and near Monticello. A short time afterwards, defendant came riding up in a gallop, and, as he rode up, Andrews said to defendant: “Doc., here is the dead come to life,”' meaning the witness, whom Andrews had heard was dead. The defendant and Andrews were both drinking ; the defendant was very drunk — reeling on his horse; the defendant and Andrews rode off together towards the ferry; they seemed friendly.. Witness met Edwin Price on the road soon after they passed witness looked back and saw that defendant had fallen in behind Andrews.

The State then introduced Thomas A. Trent as a witness^ who being duly sworn, says that Andrews was at his house the day before-the difficulty occurred, and that he asked witness if he thought the defendant would fight; that witness replied he thought defendant would not fight without a knife, but would. fight with a knife; that the deceased said he thought the defendant would not fight even with a knife, and that he intended to trj him, knife or no knife; witness again replied, that he (the deceased) had imposed on defendant twice, and that defendant had,told witness that the third time he (Andrews) imposed on defendant, would be the charm; and that he (witness) would advise him to let defendant alone. The deceased again replied, he intended to try him again anyhow ; that the threats referred to above, as being made by the defendant, that the third time would be the charm," were made some three years before the fatal rencontre. He further stated that at a Mr. Cross, some three years before the difficulty, he saw deceased press upon defendant, and threatening to strike Mm; the defendant had a knife in his hand, and was giving back ; witness walked up to defendant and took the knife out of his hand ; that defendant was giving back; he warned deceased no: to press upon him ; that if he did, he would cut him. At another time, when defendant, deceased and witness were coming from old Chariton, on the road between old Chariton and home, that deceased again made an effort to fight with defendant, and was pressing on him, and that defendant declined, and walked off briskly from him .in a cowardly manner; that the deceased was a much larger and stouter man than defendant ; that he considered the deceased an overbearing, quarrelsome man.

This being all the evidence offered by the State, in chief, the defendant then introduced and offered as a witness James Andrews, who being sworn, said he had lived a neighbor to Green B. Andrews, the deceased, during his lifetime, and had known him well for twenty years. Defendant’s counsel then asked him what was the general character of the deceased, as a quarrelsome, desperate, overbearing man, or a peaceable man ; to the answering of which question the counsel for the State objected, but the court overruled the objection, and the witness answered and said, “ that it was not good ;" that he had seen Mm 'have difficulties with his neighbors, and on one occasion draw bis knife upon an old man; and that the neighbors, generally, considered the deceased a quarrelsome, overbearing, bad man.

The defendant then introduced Edwin Price, who testified that on the day Andrews was killed, he was at Glasgow with Andrews and defendant; that in the evening, they all started home ; after they started, the defendant asked Andrews if he thought one Fleming was a stouter man than he was, to which Andrews replied he was ; the defendant said he was not, and that he could whip him or any other man of his age and size. Andrews then told defendant that he himself could whip him; the defendant denied it; they then quarreled, and got down off their horses to fight on the road, near where the widow Smith lives. As soon as they got down, Andrews got a rail, and defendant drew his knife. In this situation he (witness) left them, and went on the road towards home, meeting no one that he remembers ; that when he got to the Chariton river, he crossed in the boat, and just as he got out of the boat, on the side of the river towards home, defendant and Andrews came up, and defendant halloed to him to wait for him. Witness Stopped on the bank of the river; defendant and Andrews came into the boat; the defendant sat down on the gunwale of the boat, near the end of the boat farthest in the river. Andrews came up to him and said to him, “ you have a knife drawn about you ;” the defendant denied it, and Andrews said, “ you are a damned liar, and I will whip you.” The defendant sprang to his feet, and then commenced going out of the boat; the horses were then between the parties and him, so that he could not see much; but he heard Andrews, after he got on the bank, say, " Don’t strike me any more.” The witness could not hear every thing that was said ; but could hear very distinctly what he had related, and could see the parties, as stated. Daniel Hays was in the boat at the time, though he was drunk ; he reeled on his horse as he rode in the boat. Witness also stated that defendant and Andrews were both quite drunk ; that he himself was sober, and that he was a brother-in-law of the defendant’s, being a brother of defendant’s wife ; that as soon as defendant and Andrews got out of the boat, as stated above, he started home; that defendant left; he supposes, ran off, as he never saw him any more until after he was arrested, which was some time last fall; that the river, where Andrews was hilled, is about eighty yards wide; that the difficulty occurred in the boat, on the east bank of the river, and that witness was on the west bank at the time of the difficulty.

The defendant then introduced one William Jackson, as a witness, who said he had known the deceased for thirty years ; that his character, as a peaceable man, was not good, when drinking; that when under the influence of liquor, he was boisterous and quarrelsome ; when sober, the deceased seemed to be a reasonable man.

The defendant then introduced Peyton Windboun, who said that he had lived with Andrews two or three years, and never heard him make any threats against defendant or any body else, and witness never had any difficulty with deceased.

The defendant then introduced Samuel Dewitt as a witness, who said that he had not known deceased very long ; that when he was drinking, he was a troublesome and quarrelsome man; when sober, he always thought, a fair man.

This being all the evidence offered by the defendant, the State then recalled John Moore, who stated that the river, at the place where Andrews was killed, was at least a hundred yards wide ; that a person could hear loud talking from one bank to the other. This being all the evidence in the case, the court then gave seven instructions for the State, the 5th and 7th of which are complained of by the defendant as erroneous. The 5th instruction is as follows: “No remarks or threats made by Andrews, affecting defendant, to a third party, previous to the assault, and not communicated to defendant, are any justification for the assault or extenuation of the offence.” That there is nothing improper in this instruction is too plain for argument. The threats made against a person, by one who is af-terwards slain by him, never coming to the ears of the manslayer, surely were never yet held by a court of justice as any justification or extenuation of the homicide. How can such threats extenuate the act of a man who never was affected by the threats, never having heard them ?

The 7th instruction is as follows: “ That in every case of the killing of one human being by another, the law presumes malice." This instruction would have been right as a general proposition of law, beyond all question, if the word ‘' unlawful" had been used before the word “ killing.” As an abstract proposition, the legal mind cannot assent to its correctness as it now stands ; but yet we do not consider this general abstract declaration, improper as it is, as authorizing this court to reverse the judgment of the Circuit Court, because we find that the Circuit Court has fairly and properly put the law of this case before the jury, in other instructions, more specific and very favorable for the defendant; indeed more favorably for the defendant than what might be strictly ¡regarded as the law. The instruction No. 17, asked by the defendant, and given by the court, does away with whatever injury-the 7th instruction, given for the State, and the refusal to give the 15th, as asked by defendant, might have produced. The 15th instruction is as follows : “ Every killing of a human being is not a crime by law.” This the court refused to give. It is too general; it has no bearing on the case. It is an abstract, legal proposition, undoubtedly true, more correct than the one in the 7th instruction given; but we think the court properly refused it, even in this case. But, as stated above, the 17th instruction is calculated to do away with any improper impression made by the 7th, given for the State. This 17th instruction declares that, “ whilst the law presumes malice when the killing is proved by evidence, yet such presumption is but a general rule of law, and the jury, therefore, in determining the intention, ought to be guided alone by the facts and circumstances of this particular case." So far, then, as the 7th instruction, given for the State, may have had an injurious tendency against the defendant, the same is done away by the 17th and other instructions given for tbe defendant. This disposes of every objection made against the judgment below, except the refusal of some instructions ashed by defendant. We shall briefly notice them. The court gave fourteen instructions, as prayed by the defendant, and refused to give six, namely, the 3d, 4th, 5th, 9th, 15th, and 18th. The 3d instruction was, in substance, given to the jury in the 6th instruction. The 4th'instruction was given in the 8th. There is no cause of complaint in refusing these two, as the same propositions were substantially put before the jury. As to the addition in the 6th, over and above the 3d instruction, it is proper, and was correctly added. The 5th instruction was very properly refused, having no facts in proof to warrant the court in giving it. The 9th instruction is as follows: “That, although drunkenness is no justification for the killing, yet the jury may take it into consideration, in determining the intent with which the defendant did the act.” The 18th instruction is upon the same subject, and is as follows : “ That, if the jury believe from the evidence before them, that defendant, at the time he killed Andrews, was so much intoxicated as not to be able to act as a sane and rational man ; that he became so intoxicated, not with the intention to kill Andrews, or to do him any personal injury, they must find defendant not guilty.” I dismiss these two instructions, by stating that human life, cheap as it now is, would hardly be considered any longer under legal protection, if such should be the law laid down by our courts. It is considered criminal for a man to make himself a drunkard; one crime never yet justified the commission of another. The 15th instruction has already been disposed of. So much for the instructions refused.

The court instructed the jury “that it was not sufficient to justify them, in condemning Harlow, to simply believe he is guilty ; but they must be so thoroughly convinced, by the evidence, that they shall not have a reasonable doubt of his guilt; that the question of doubt or innocence, in this case, depends entirely, and must be determined alone by the intention which actuated the defendant in the killing ; that, in determining the motive which prompted the defendant in hilling Andrews, they must take into consideration all the facts and circumstances of the case; that, if the jury believe from the evidence, that Andrews manifestly intended to commit a felony upon Harlow, by violence or surprise, at the time of the rencontre, Harlow was not bound to retreat from him, but had a right to pursue him until he was out of danger; and if, in the conflict, Andrews was killed, Harlow would be justifiable, provided such act was necessary to prevent the commission of the apprehended felony or bodily harm.”

The defendant has no cause of complaint in respect to the instructions ; nor do I think he has against the verdict and punishment assessed by the jury.. He has escaped with more leniency than such crimes sometimes meet. In regard to the motion in arrest of judgment, no error is complained of by the appellant here — no objection taken to the indictment.

Upon the whole case, therefore, this court is of the opinion that the judgment below should be affirmed. Let it be so done ; the other judges concurring.


source: Caselaw Access Project

author: Leonard, Judge,

license: Public Domain

text:
    The State, Respondent, vs. Igo, Appellant.
    1. The mere fact that a juror in a criminal case separates from his fellows after they have retired to consider of their verdict, and is seen in conversation with a hy-stander, is no sufficient ground for setting aside the verdict, there being no ground for suspecting any improper influence.

      Appeal from Morgan Circuit Court.

    The facts are sufficiently stated in the opinion of the court.
    Edwards, for appellant.
    A juror having separated himself from his fellows, without being attended by an officer of the court, without the consent of the court, after the cause was submitted to the jury, and before the jury had agreed on their verdict, said verdict was void. (3 Harris’ (Penn.) Rep. 4T0.
      Wesley v. The State, H. Humphrey’s (Ten.) Rep. 512. McCann v. The State, 9 Smedes & Marsh. (Miss.) Rep. 465.) The facts in this case are different from those in the case of Whitney v. The State, 8 Mo. Rep., and State v. Barton, 19 Mo. Rep.

      Gardenhire, (attorney general,) for the State.
    It has often been decided that the separation of the jury is, of itself, ,prima facie cause for a new trial. (7 Eng. (Ark.) 782. 9 Sm. & Marsh. (Miss.) 465. 13-ib. 398, ib. 500. 1 Swan. (Ten.) Rep. 256. 8 Humph. 597. 11 ib. 169, ib. 502 — a capital case. 1 Ya. cases, 271. 2 ib. 375. 11 Leigh, 638. •3 Harris (Penn.,) a capital case, in which the prisoner consented to the separation.) But such is not the English doctrine, (1 Chitty’s Rep. 401 ; 1 Chitty’s O. L. 634;) nor is it the doctrine of most of the American states. (Wharton’s ''€. L. 895. 2 Blackf. 114. 2 Carter (Ind.) 435. 11 Ohio, 471. 13 ib. 492. 15 ib. .72. 2 Bailey, 565. 2 Strobh. 178. 2 Rich. (S. C.) 119. 1 Bailey, 651. 1 Dev. & Bat. 500. 7 New Hamp. 290. 1 Conn. 401. 12 Pick. 496. 4 Cowen, 26. 5 Cowen, 284. 17 Wend. 423. 5 Hill, 32. 1 Parker’s Crim. Rep. (N. Y. 1854) 256.) And it is not the doctrine of Missouri. ('8 Mo. Rep. 165. 16 Mo. Rep. 391. 19 Mo. Rep. 227.)
   Leonard, Judge,

delivered the opinion of the court.

This was an indictment for a felonious assault and shooting, with intent to kill, upon which the defendant was convicted and sentenced to two years’ imprisonment in the penitentiary. After the verdict, a motion was made for a new trial, upon affidavits that one of the jurors, after the jury had retired from the bar to consider of their verdict, was seen on the public square, unattended by an officer,, in conversation with a bystander ; but upon what subject, and how long, was not shown. The motion was overruled, and the record showing nothing more, the only matter for our judgment is the naked, dry quesiion, whether this separation of the juror from his fello-ws is, of itself, without any thing further, a sufficient ground to set ¡aside the verdict, and we are all 'dearly of the opinion that it is not.

Mr. Wharton (Crim. Law, 1008.,) says : “ The .general rulo is, that the verdict will not be set aside on account of the misconduct or irregularity of a jury, even in a capital case, unless it be such as might affect their impartiality, or disqualify them for a proper exercise of their functions. An exception, how-ever, formerly existed in England, and is still recognized in several of the -United States, in felonies., where the.jury separate, after the opening of the evidence. While, on the one hand, the present .practice in England, and in a portion of the American courts, is to sustain the verdict, when the separation has been inadvertent, and no abuse has resulted from it. -On the other hand, it has been considered, in several instances, that the mere separation, without permission, is, in itself, .-prima facie, reason for a new trial!”

By the old law, “ a.,jury, after their evidence given upon the issue, ought to be kept together, in some convenient place., without meat or drink, fire or candle, and without speech with ;any, unless it be the bailiff, and with him only if they be •agreed.” (Co. Lit. 227.) A different rule, however, has since been acted upon, and now, according to the English practice, juries are permitted "to separate, in all -cases, except felonies, whenever, in the discretion of the court, it seems proper:; and their mere dispersion or separation, with or without leave, is no ground for setting aside their verdict. (Rex v. Woolf, 1 Chit. (Eng. Com. L. Rep.) 401. The King v. Kuincar and others, 2 Barn. & Ald. 592.) In felonies, however, the old rule still prevails in England, except in cases of overruling necessity; but as new trials are never allowed there in Monies, the effect of an inadvertent or even wilful separation -of one or more of the jurors from his fellows, has never been a subject of discussion there. In the United States, however, where motions for new trials are entertained in eases of felony as well as of misdemeanors, this matter has been frequently under discussion, and the decisions are very far from being uniform.

In some of the states, the mere separation, without any thing more, is a sufficient ground for a new trial. This was so settled in Virginia, in an early case, ( The Commonwealth v. McCaul, 1 Va. Cases, 304,). and has been followed in some other states.

In New Hampshire, the rule adopted is, that the separation is no ground for setting, aside the verdict, when the cotirt is satisfied the prisoner has sustained no injury ; yet, the presumption is, that it was prejudicial to him, and this presumption must be overcome by proof on the part of the government, showing that the prisoner suffered no injury by reason of the separation, or the verdict must be set aside. ( State v. Prescott, 7 New Hamp. 287.)

In New York and other states, the practice of the English courts, in civil cases, and trials for misdemeanors,, is followed, and a separation, where it does not appear that some abuse has resulted from it, to the prejudice of the prisoner, is no cause for avoiding the verdict. ( The People v. Douglass, 4 Cow. 26. The People v. Ransom, 7 Wend. 423.)

In the case of the People v. Ransom, it is said, " that the doctrine upon this subject is the same in criminal and even capital cases as in civil, is clearly settled.” The case of the People v. Douglass was a conviction for murder. During the trial, the jury had leave to retire from the box under the charge of two sworn constables, and the direction of the court to keep together, and return speedily into court. Two of the jurors separated from their fellows,, drank whisky, took other refreshments, and conversed with the by-standers on the subject of the trial. Upon an application for a new trial, for the misconduct of the jury, each of the judges expressed a decided opinion that the mere separation of the jury, though in violation of their duty, and against the express directions of the court, and although in a capital case, would not, of itself, be a sufficient cause for setting aside the verdict; nor would the mere fact of eating vitiate the verdict; but the court were unanimous in the opinion, that the drinking of ardent spirits, though not to an extent that produced intoxication, was a gross and fatal irregularity, and that its tendency to abuse was so strong and inevitable that they would not inquire whether injury had actually-resulted from it. They would hold it a conclusion of law, not to be rebutted, that its effects had been injurious, and on that ground principally a new trial was granted. The case of the King v. Woolf, (1 Chitty’s Rep. 401,) fully sustains the general principle maintained in the cases already referred to.. That was an indictment for a conspiracy, and the jury, during: an interval of an adjournment, were permitted by the judge to. retire to their respective houses, and a new trial was movedfor-on that ground. All the judges held that it was immaterial,, as-it regarded that motion, whether separation of the jury was-with or without the consent of the court; only in the latter case, it would be a misdemeanor in the jury, while in the former, it-would not; and Abbott, Chief Justice, says : Though it maybe a misdemeanor in them to separate, without the consent of' the judge, it will not avoid the verdictand each of the other-judges expressed the same opinion.

This court has heretofore acted upon the same principle,. ( Whitney v. The State, 8 Mo. Rep. 165, and the State v. Barton, 19 Mo. Rep. 228,) and we are not disposed to depart from it. Indeed, we think no other rule could be adopted', upon the subject, consistent with a proper and efficient administration of the law. When the verdict is such as the court-thinks ought to have been rendered upon the law and evidence,, and no improper influence has been exerted, in any manner,, over the jury, nor any just grounds for suspecting any such influence, it would seem to be but trifling with the administration! of the criminal law of the land, to set aside a verdict upon the-mere possibility that the jury may have been improperly influenced.

In the present case, the evidence given upon the trial is not preserved in the record, nor is there a single circumstance shown-. from which we can infer that any injury resulted to the prisoner from the alleged separation, or even to excite the least suspicion of any improper influence. The judgment is affirmed.


author: Ryland, Judge,

text:
    The State, Respondent, vs. Huting, Appellant.

      X. Where a motion to discharge a prisoner, under the 25th section of the 6th article of the act concerning practice and proceedings in criminal cases, (R. C. 1845,) for a failure to bring him to trial before the end of the second term after indictment found, is overruled by the inferior court, the facts upon which the motion is based must be proved and the evidence saved by bill of exceptions, so that the supreme court can see affirmatively that the delay was not for one of the causes which would prevent it from operating as a discharge, or it will be presumed that the motion was properly overruled.
    2. In considering whether a prisoner is entitled to a discharge under the section of the statute above referred to, a term which lapses or which is adjourned in the midst of the trial, by reason of the illness of tile judge, is not to be counted ; nor is a term at which there was a trial and a failure of the jury to agree to be counted, the constitution authorizing a continuance in such a case; nor is a term, which is by law limited to six days, to be counted, where, on the fourth day, the case was continued, because up to that time only five jurors had been empannelled; nor are special terms to be counted. The statute was intended to operate only when there is some laches on the part of the state.
    3. Partial insanity is no excuse for a crime, if the defendant was capable of distinguishing between right and wrong, in regard to the act charged to be criminal.
    4. A party charged with murder, who admits the killing, and relies upon the s defence of insanity, must make it out to the satisfaction of the jury, and is not entitled to the benefit of a reasonable doubt as to his sanity.

      Appeal from Montgomery Circuit Court.

    The facts are sufficiently stated in the opinion of the court.

      Jamison and Jones, for appellant,
    in their brief, insisted that the Circuit Court should have instructed the jury to acquit if they had a reasonable doubt as to the sanity of the defendant,

      Gardenhire, (attorney general,) for the State,
    in his brief, argued the single point that the Circuit Court did not err in overruling the motion to discharge the defendant on account of the delay in bringing him to trial; and that the onus was oü the defendant of showing that the delay was not for one of the causes preventing a discharge.
   Ryland, Judge,

delivered the opinion of the court.

At the September term of the Circuit Court, within and for the county of Montgomery, in the year A. D. 1851, John Hu-ting, the defendant, was indicted for the murder of Caroline Scholton. The prisoner was brought into court from the custody of the jailor. The court assigned counsel to assist the prisoner in his defence, and also appointed an interpreter, who was duly sworn as such in the cause. The prisoner was then arraigned, and plead not guilty, and the trial was continued until April term following.

The illness of the judge prevented the meeting of the court at the regular term'in April, 1852, and consequently there was no April term of the court.

The trial of this case commenced at the September term, in the year eighteen hundred and fifty-two, and the record shows that it was not completed, owing to the illness of the judge of the court; that the court discharged the jurors, and remanded' the prisoner, and continued the case.

The case was again called at the April term, in the year eighteen hundred and fifty-three, and a jury was empannelled and the case was submitted to the jury, but they were unable to-agree in their verdict, and were by the court discharged. The prisoner was again remanded, and the case continued.

At the September term, A. D. 1858, the case was called up for trial, and a part of the jury was sworn, and on the fourth-day of the term, the court being unable to complete and make up the jury, the jurors who had been sworn were discharged,, the prisoner remanded to jail, and the case continued.

At the April term, A. D. 1854, the case was again called up. for trial; the prisoner, by his counsel, moved the court to discharge him, under the 25th section of the 6th article of the act concerning criminal proceedings, because the prisoner had not been brought to trial in accordance with the provisions of said section. This motion was overruled, the defendant excepted, and filed his bill of exceptions.

The prisoner was then tried and found guilty of murder in the first degree ; judgment was rendered on the verdict. The prisoner moved for a new trial; also, im arrest of judgment. These motions being overruled, he brings the case here by appeal; the execution of the judgment being, by order of the Circuit Court, suspended, until the hearing and decision of the case upon the appeal in this court.

The following are the material facts given in evidence, as appears by the record: Adelhied Scholton, a witness for the State, sworn, said that she had known the prisoner about five years ; that on the 16th day of June, A. D. 1851, the deceased, Caroline Scholton, came into her room and told her she had been out where John was, and he had told her he wanted to tell her something : that he had loved her, and wanted her to take a letter from him, and that she told him she would not hear him, nor take his letter; but that he (defendant) must wait and say whatever he wanted to say in the presence of the family; that witness told her to go back and hear what John had to say, and receive his letter ; that deceased went back and told John she would take the letter, and hear what he had to say ; that John told her he would keep the letter safe; that deceased then returned and sat down on a trundle bed; that soon after, as witness came into the house, the defendant had the gun in his hand, in the porch, fixing the priming ; that witness went into the house and sat down near the deceased on the same bed, with her little child between them, and soon thereafter the defendant came to the door, with the gun in his hand, and says, “(his is for your pride;” that deceased begged him not to shoot, and witness did the same, but that defendant shot her; first, with one barrel, and then with the other; that deceased fell back, and that witness took up the child and ran to the house of a neighbor, (Eli Johnson.) As witness went off, she saw defendant throw down the gun and go to the stable lot. After he got to the lot, she heard the small report of a gun or pistol in the lot, and heard some one hallooing, which she took to be John. As she left, she saw blood on her child’s face, which she washed off. The witness said that the defendant had lived with us about five years, and the deceased had lived with us about one and a half years, and both were living with us at the time of the killing. The deceased was about twenty- one years old; that there was no one about the house except those named by her before; that defendant had always been a quiet, peaceable man, up to the killing, s.o far as she knew.

The State then introduced George Sheirekamp, who stated, on Sunday, which was the day before the killing, he went to Mr. Scholton’s to put in some windows for him ; that after working a while, he and John started down the river to see some fish hooks they had set out; that as they went along, defendant said he had for a long while wanted to see him; that he loved Caroline Scholton much ; that the first chance he got, he would ask her to have him ; if she refused, he intended to shoot her dead and then kill himself ; that he (the witness) told him he had been young and loved the girls, but that he never thought of such a thing. Defendant said that witness had told him of that often enough ; that he (witness) had never loved girls much, but he should hear more about it. Caroline was killed on the Monday, and when witness was making her coffin at Mr. Quick’s, on Tuesday, the defendant was lying on the bed, and asked witness if he (defendant) was too mean for him to come and see any more. He (witness) then went to defendant and asked him whether he shot deceased by accident or aforethought, and that witness replied he did it aforethought or willingly. On cross-examination, this witness said, he did not tell the family of Scholton what John (the (defendant) had said about the deceased, when they went back from the fish books, because be thought John was jesting. At the time witness saw John at Quick’s, he had his left arm bandaged, and a poultice on his breast. Witness cannot recollect any thing else that occurred on the day they went to see the-fish hooks : he thought defendant jesting when he spoke as he did. Witness spoke of the first conversation he had'with the-defendant as soon as he heard of the murder.

James Nunnally, a witness- for the State, testified that he-arrested the defendant, and after telling him the charge made-against him, he asked him whether he was guilty or not; the-defendant replied guilty, and’said he was sorry for it. Witness said he (witness) explained to him the nature of the-charge made against him, and he said he was guilty, and that' he had killed deceased because she would not accede to his-proposition.

Mr. Barking was then introduced as a witness for the State, who-said, that, on the day of the killing, I went to Scholton’s- and found the deceased had fallen off from the bed and lying; rather on her back, with seventeen buckshot holes around her right eye and forehead ; the shot had passed through her head,, and some of the brains protruded at the back of her head.. Cross-examined, said he saw the defendant on the day after the-killing had taken place: he labored under much excitement %. showed much emotion ; his chin quivered, and he wept: he said he was sorry he had committed the act. Witness saw a wound on the stomach of the defendant, that appeared to be produced by powder; it was black. Defendant also had a cut across the left wrist; this cut was bandaged, and the wound upon the-stomach had a poultice applied to it.

The wounds or scars on the- defendant were then shown to the jury. They consisted of a scar quite across the left wrist, over the pulse, which seemed to have left a knot. The sear upon his stomach was perceivable. This was the material evidence in the ease ; nothing of importance further given in evidence by either party. The defence relied upon was insanity.

The court then gave the following instructions for the State z

1. If tbe jury believe from the evidence, that the prisoner formed a determination, in his own mind, to hill Caroline Scholton ; that this determination was deliberately formed before the act of killing took place ; and that after such determination was so formed, he did, in pursuance thereof, commit the act of killing, in the manner charged in the indictment, then the prisoner is guilty of murder.

2. If the determination to kill the deceased existed in the mind of the prisoner before the act of killing took place', and such determination was deliberately formed ; and if such determination is proven to the satisfaction of the jury by evidence other than the act of killing, then this will constitute murder in the first degree.

3. If the jury find from the evidence, that the prisoner, at the time he committed the act of killing, was so insane as not to be capable of knowing that the act was criminal, then he is not responsible for his act, and the jury should acquit him.

4. To constitute insanity a good defence, the jury must find that the prisoner was so far insane as not to be capable of knowing that the act committed was criminal.

5. If the jury should believe from the evidence, that the prisoner was deeply in love with Caroline Scholton, the deceased, and desired to marry her, and that he killed her in a fit of jealousy, because she refused to accept his addresses, or marry him, this is a criminal act; and if the determination to kill her for that cause was deliberately formed before the act of killing took place, then such killing is murder; and if the jury find that such determination to kill her for the cause stated is proven to the jury by acts or declarations of the prisoner, other than the act of killing itself, then it is express malice, and constitutes murder in the first degree.

The defendant excepted to the giving of these instructions. The defendant asked and the court gave the following instructions :

1. To convict the defendant of murder in the first degree,. the jury must be satisfied, from the evidence, beyond a reasonable doubt, that he is guilty of murder in the first degree.

2. To convict the defendant of any offence less than murder in the first degree, the jury must be satisfied, from the evidence, beyond a reasonable doubt, that he is guilty of such offence.

3. If the jury have a reasonable doubt as to the guilt of the defendant, they must acquit, by returning a verdict of not guilty.

4. That a person may be insane on one subject and sane on all others.

5. That if the jury believe from the evidence, that the defendant was so far insane on the particular subject that brought about the death of Caroline Scholton, as not to know the act was criminal at the time he done the deed that produced her death, then they will return a verdict of not guilty.

6. That to findi the defendant guilty of murder' in the first degree, the jury must believe from the evidence, beyond a reasonable doubt, that the killing was done wilfully, deliberately, premeditatedly, and with malice aforethought.

7. Insanity, like any other fact in the case, may be proved to the jury by circumstances — positive proof is not required.

The counsel for the prisoner, in this court, rely mainly on two grounds for a reversal of this judgment. The first one of which is, that the court below erred in overruling the defendant’s motion to discharge the prisoner, because he had not been brought to trial in due time, according to the laws of the land. The second ground is in relation to the subject of insanity. The instructions given by the court to the jury on that subject, the defendant’s counsel contend are not the law, and, consequently, it was error for the lower court to give them. We will notice these several grounds at large.

And, first, as this case involves the life of a fellow-being, we will state particularly all the important facts, as we have seen them sent up to this court, whether certified and forming part of the record proper or not, and give to the defendant all the benefit he could legally have derived from such matters, if the same had been duly saved by exceptions and properly certified. I make this observation, in order to let the counsel for the prisoner and the public see that in such cases this court will never rest its judgment and decision in matters so fatally serious as this case presents, by affirming barely on technical niceties and omissions in the record.

The record proper contains, nothing on which the first ground relied on by the defendant’s counsel for the reversal of the judgment can be made to appear. There is nothing in it, as appears by this record. The motion filed at April term, 1854, for the prisoner’s discharge, and the causes therein set forth for such discharge, without any proof of the facts on which such motion is based, do not afford ground on which this court should reverse.

The following is the motion filed by the prisoner’s counsel: “ That defendant moves to be discharged upon the ground that he was not brought to trial before the end of the second term of this court, which was held after the indictment against him was found, and because such delay was not occasioned by the application of said defendant, and was not occasioned by the want of time to try said cause at said second term.” The bill of exceptions merely shows this motion was made and was overruled, and was excepted to by defendant. No facts offered in proof — no negation of the causes for overruling the motion, as are provided for by the statute. Indeed, nothing but the motion and its being overruled.

This court cannot take notice of the causes merely stated by motion, without any proof of their existence. We must presume that the lower court properly, and for good reasons, refused to sustain this motion; and, whether such really existed or not, the party complaining must so state, and save the facts in proof, that this court can, from the record, see whether the inferior court has abused its discretion, or has acted erroneously in regard to such motion. The motion, by itself, is no proof of the existence of tbe causes on wbich it relies for the sanction of the court. Let us now see if the record shows any proof of the causes set forth in the motion by a more particular examination of it. We have said the record proper contained nothing to support the motion ; but this may seem assertion rather than investigation. We will dissect it and see.

But, first, let us consider the statute on which this motion is based, before we particularize in regard to the record. The 25th section of the 6th article of the act concerning practice and proceedings in criminal cases, (R. C. 1845,) is as follows : “If any person indicted for any offence and committed to prison, shall not be brought to trial before the end of the second term of the court having jurisdiction of the offence, which shall be held after such indictment found, he shall be entitled to be discharged, so far as relates to the offence for which he was committed, unless the delay shall happen on the application of the prisoner, or shall be occasioned by the want of time to try the cause at such second term.” The 26th section, which follows, embraces persons indicted, but on bail, and fixes the end of the third term instead of the second. The 27th section is as follows : “ If, when application is made for the discharge of a defendant, under either of the two last sections, the court shall be satisfied there is material evidence on the part of the State, which cannot then be had; that reasonable exertions have been made to procure the same, and that there is just ground to believe that such evidence can be had at the succeeding term, the cause may be continued to the next term, and the prisoner remanded or admitted to bail, as the case may require.”

By the statute prescribing the times of holding the courts in the several circuits of this State, the Circuit Court for the county of Pike is held on the first Mondays in April and September ; for the county of Montgomery, on the second Mondays in April and September; for the county of Warren, on the third Mondays in April and September; thus allowing ono week to the Circuit Court of Montgomery county.

Now the record before us shows that this indictment was found and returned by the grand jury of Montgomery county, at the September term, 1851. It also shows that there was no court at the April term, 1852- — the judge’s illness caused the term to lapse. At the September term, 1852, the trial was commenced, and by reason of the judge’s illness the court adjourned; the jury, in this case, being discharged. Neither of these terms can properly be counted as terms, in regard to this prisoner, or in his favor, under this statute. It was not designed for such cases. When there was no court, or when the court had to adjourn until a subsequent day, by reason of the illness of the judge, it must be regarded as affording no sufficient time for the trial of causes ; and, in our view of the statute, the prisoner, in jail or out on bail, cannot take advantage of such circumstances and move his discharge. On this motion, therefore, the court properly refused to consider these as terms of the court under this statute. At the April term, 1853, a jury was empannelled, and the trial was had ; but the jury not being able to agree on the verdict, the court discharged the jury and remanded the prisoner. This was in accordance with the 10th section, 13th article of the state constitution: “ If, in any criminal prosecution, the jury be divided in opinion at the end of the term, the court before which the trial shall be had, may, in its discretion, discharge the jury and commit or bail the accused for trial at the next term of such court.” This term, then, cannot be counted in favor of the prisoner. All that could be done, in order to have his trial, was done at this term; there was no delay on the part of the State. The division in opinion of the jury was, at the end of the term, the reason for their discharge; and, at the end of the term, there remains no time sufficient for any other trial at that term. So, if the prisoner complains of the delay at this term, it may be answered that, after what was done, in order to have a trial, and that trial proved unavailing, there was, emphatically, a want of time, or rather there was no time at that term to retry the cause.

At September term, 1853, tbe case was called for trial, and the record shows that on the fourth day of the term, the court being unable to empannel a jury, having only five jurors sworn up to that day, discharged those five jurors, continued the case, and remanded the prisoner. This term also cannot be counted for the prisoner; there was no trial at this term truly because there was no time to try the cause. The term consists of six days, and on the fourth day, not half of the jury empannelled. It might have taken the remaining two for the sheriff to have summoned persons from whom the pannel could have been completed. At all events, the court, satisfied that there was no power in the court at that term to complete the jury, adjourned the cause, because it was not able to get a jury; this delay, then, at that term, was because there was want of time to try the prisoner. At the next term, the trial was had, and the unfortunate man was convicted.

The amended record shows that a special called term for the trial of the prisoner, John Huting, was held by the judge on the 14th day of June, A. D. 1852 ; but it also shows that the court adjourned the same day without making any mention of the case of the State vs. John Huting. It also shows that the September term, A. D. 1852, was adjourned over until the 20th day of December, 1852, and that this adjourned term closed on the 30th day of December, 1852, without any mention being made of the case of the State vs. John Huting.

There is also a paper not certified, but made out by the son of the clerk of the Circuit Court, giving his private statements of some reasons why there was no trial of the prisoner at the special terms. This document has been examined by us, in order that we might clearly see what had been done in the progress of this case ; whether any injury had been caused to the defendant. We do not sanction such a transcript, nor would we regard it as affording any evidence in the cause of what had taken place in the court below ; but, being a case involving the life of the defendant, we looked into it, in order to see if any Other or further steps, to procure a full and complete transcript of wbat was done at tbe special terms, was necessary. But taking all the transcipts in the case, which have been made out as the full record, and we come to the conclusion that there was no good and sufficient reason why the court below should have sustained the defendant’s motion for a discharge.

We do not think that special or called terms of the Circuit Court are within the 25th section of the statute, above quoted. The legislature meant regular terms, not special terms, for the trial of '¿riminal business, under certain emergencies.

The law was passed to protect prisoners, and afford them a speedy trial. If, therefore, the State should indict a person, and confine him in the prison of the county, or cause him to give bail, as the case might require, and should afterwards take no steps to bring the accused to trial, and should thus lie by and do nothing until the end of the second term after that at which the indictment was found, such delay and neglect, on the part of the State, should authorize and justify the discharge of the accused from imprisonment and from such offence. But such cannot be the casé when every exertion is made for trial, and yet, from causes beyond the control of the State, the trial shall be delayed.

We have weighed well this objection, and, in our view of the case, this record does not support it, nor even offer any plausible ground for it.

On the second ground relied upon for reversing the judgment below, the law is equally clear against the prisoner.

The court gave all the instructions asked for by the State, and all asked for by the accused. The defence turning wholly on the insanity of the defendant, the court told the jury, that, “ if they believed the defendant was insane upon the particular subject, so as not to know that the act done was criminal, he must be acquitted.”

In relation to the proof of insanity, the court instructed the jury that “ insanity might be proved like any other fact — positive proof not being required.”

Without reference to the numerous decisions on this subject In the English courts, and also in the courts of our own country, I will notice a few leading principles and rules which the cases furnish, and apply them to the case before the court. Where insanity is interposed as a defence to an indictment for an alleged crime, the inquiry is always brought down to the single question of capacity to distinguish between right and wrong, at the time when the act was done. This is the rule laid down by all the English judges but one, in the late case of McNaughten, while pending in the house of lords. See case reported in Clark & Finnelly, (10th vol. p. 210.) See Freeman v. The People, (4 Denio, 29.) The insanity must be such as to deprive the party charged with the crime of the use of reason in regard to the act done. .The prisoner -may be deranged on other subjects, but, if capable of distinguishing between right and wrong in the particular act done by him, he is Justly liable to be punished as a criminal. Such is the undoubted rule of the common law on this subject. Partial insanity is not by that law necessarily an excuse for crime, and can only be so where it deprives the party of his reason in regard to the act charged to be criminal. (1 Archbold’s Grim, Prac. p. 10, 11.)

The instructions here given brought down the question of insanity in regard to the act done. If the prisoner had been sane on all other subjects, and yet not able to know whether the act charged against him was right or wrong, owing to some morbid and diseased hallucination of the mind upon the very subject, the jury were instructed to find him not guilty. The court also informed, them that insanity was like any other fact in proof — it did not require positive proof — but might be proved by circumstances.

The defendant’s counsel contend that the court should have told the jury, that, if they had a reasonable doubt of the insanity being made out by the proof in the case, they ought to find for the prisoner. This is carrying the doctrine too far. Insanity may be made out by circumstantial proof; it does not require positive proof ; but the jury must believe from the evidence, at least, that it exists.

If the jury .have a reasonable doubt of the guilt'of the defendant, they are to aequit. If the State makes out but a doubtful case, the jury will acquit. But this doctrine of doubt has not been carried to the extent, that, if the defendant makes out but a doubtful defence, they must acquit.

In looking over the whole number-of instructions .given by the court in this case, we are satisfied that -the court laid down the law as favorably, if not more so, than the facts warranted for the defendant. The case has been fairly submitted, under instructions more favorable to the accused .than the law strictly admitted, and he has been found guilty. This -court has nothing left but to affirm the judgment of the Circuit Court, and to order that the judgment be carried into execution.

The other judges concurring, the judgment below is affirmed.


text:
    The State, Respondent, vs. Taylor & Gist, Appellants.
    1. On tile trial of two persons jointly indicted'for aiding and abetting a murder, an instruction to the jury that £< if the defendants -or either of them were .present, &c., they must convict,” will not be supposed to have misled them.
    S. If, in an indictment for aiding and abetting a murder, a venue is laid to the murder itself, and it is stated that the defendants were then present, aiding and abetting, &c., this is sufficient.

      Appeal from Clinton Circuit Court.

    Clark, for appellants.
    1. The first instruction declares all of the defendants guilty under the indictment if one was present, and is clearly erroneous. (19 Mo. 529.) 2. No sufficient venue is laid in the indictment. (1 Chitt. Crim. Law, 218, 222. 2 Chitt. Cr. Law, 4.)

      Gardenhire, (attorney general,) for the State.
   Ryland, Judge,

delivered the opinion of the court.

The defendants, Benjamin Taylor and Henry Grist, together with William Taylor and Jacob Taylor, were indicted for the murder of George L. Oster, in the Circuit Court of Caldwell county, at the September term, 1858.

On the petition of the defendants, the venue was changed to-the Circuit Court of Clinton county. At the November term of the Clinton Circuit Court, 1854, the case was tried between the State and the two defendants, Benjamin Taylor and Henry Gist; the defendant, William Taylor, having in the meantime made his escape from the jail in Clay county, and the-defendant, Jacob Taylor, having obtained an order for a separate trial. The jury found the defendant, Benjamin Taylor,, guilty of manslaughter in the second degree, and assessed his-punishment to three years’ imprisonment in the penitentiary. They also found the- defendant, Gist, guilty of manslaughter in the third degree, and assessed his punishment to three months’ imprisonment in the county jail, and the payment of a fine of one hundred dollars.

The defendants moved for a new trial, and also in arrest of judgment; these motions being, overruled, exceptions were taken, and the defendants bring, the case here by appeal.

The record is very voluminous-, containing all the evidence, about which there is no controversy in this court; it will not, therefore, be necessary to make a statement in regard to it.

The appellants rely upon two grounds for reversing the judgment below. The- first is in regard to an improper instruction alleged to have been given, for the State, for which it is contended that a new trial ought to have been granted. The second relates to the indictment, whieh is objected to as insufficient, and for which it is contended the judgment should have been arrested.

Let us examine these grounds. The instruction alleged to be improper is as follows : “ That, if the jury believe from the evidence, that George L. Oster was wilfully, deliberately, pre-meditatedly and maliciously killed in tbe month of June, 1858, in tbe county of Caldwell, and that the prisoners, Benjamin Taylor and Henry Gist, or either of them, were present aiding, assisting, comforting and maintaining in the killing, they must convict.”

The appellants contend that, as the defendants are all charged in the indictment as being present aiding, abetting, &c., this instruction declares all guilty under the indictment, if any one of them were present at the shooting. We-do not think this-the correct interpretation of this instruction ; nor do we suppose that the jury could be misled by it. It manifestly means that, if Taylor or Gist, or either of them, was present, aiding, assisting, comforting and maintaining in the killing, the jury must convict such as they shall find thus from the evidence present, aiding, &c. ; if but one, then convict him ; if both, then convict both; if neither, then acquit both. It surely did', not authorize the jury to convict both, though they should find one only present, aiding, &c. To give the instruction this meaning, would be to pervert it. It does not direct them to. convict both, if one only was present aiding, &c., but to convict such and such only as they shall find present, aiding, &c.

We think the words of the instruction plainly mean this, and-i that they were so understood by the jury.

The fourth instruction asked for by the defendants, and given, by the court, has a tendency to prevent the jury from being, misled by this first instruction, even if it could have the meaning contended for by appellants. It is as follows : “ Unless the jury believe from the evidence that the prisoners participated in the killing of George L. Oster, they will find them not. guilty, although they may find that the prisoners, or either of them, were present when the killing took place, and did not interfere to prevent it; their being present and failing to interfere to prevent the killing, will not authorize the jury to find: the defendants, or either of them, guilty, unless the defendants, or either of them, went to the place to kill said Oster, or to assist in the killing.” There is, in the opinion of this court, no force in the first ground relied on by appellants for reversing the judgment below.

The next objection is, the want of venue ; that there 'is no time, mo place, to the averment in the indictment that the defendants were present, aiding, &c., at the killing. In looking into the indictment, we find that time and place are alleged to the assault, stroke and death ; and it is averred that the defendants, Taylor and Gist, were present at the time, aiding and abetting. This we consider sufficient. Here, the time and place of the assaulting, shooting, and of the death of the deceased, George L. Oster, are properly set forth and averred, and immediately follows the averment that the defendants, at the time of committing the felony and murder aforesaid, in manner and form aforesaid, feloniously, wilfully, deliberately, and of their malice aforethought, were present aiding, helping, abetting, comforting, assisting and maintaining the said William Taylor in the felony and murder aforesaid, in manner and form aforesaid, to do, commit and perpetrate, &c.

The felony is first distinctly set forth — time, place and circumstances ; the defendants are then charged with being present at the time, aiding, &c., to commit the murder; this we consider all-sufficient, without saying at the place in so many words ; for, if they were present at the time, aiding, they must necessarily be at the place. Yenue is only necessary to give the court jurisdiction; here, it is laid to the principal act, and it is averred that the aiders and abettors were present at the time, assisting to do the deed. They must be also present at the place; that is, they must be where the principal act was done. A venue laid to that act gives the court jurisdiction over the aiders and abettors of the action at the time.

Upon the whole, then, we find no error calling for the correction of this court. The judgment below is affirmed; the other judges concurring.


text:
    The State, Appellant, vs. Freeman, Respondent.
    1. In an indictment for felonious wounding, under the 38th section of the 2d article of the act concerning crimes and punishments, (E. C. 1845,) no venue to the wounding is necessary, if there is a venue to the assault and stroke which caused it.
    2. The omission of the word “ present” in the commencement of an indictment, is not a valid objection to it. (Scott, J., dissenting.)

      Appeal from Hickory Circuit Court.

    The defendant was indicted under tbe 38th section of the 2d article of the act concerning crimes and punishments, (R. C. 1845.) The record showed that the indictment was presented and returned into the Circuit Court of Hickory county, by a grand jury empannelled and sworn. The indictment itself was as follows :
    “ The grand jury for the state of Missouri, empannelled, charged and sworn, to inquire within and for the body of the county of Hickory, upon their oath-, that Silas M. Freeman, late, &c., on, &c., with, &c., at, &c., in and upon one William Freeman, in the peace of the state then and there being, unlawfully and feloniously an assault did make, and that the said Silas M. Freeman did then and there, with force and arms, unlawfully and feloniously, and with a certain iron shovel, which he, the said Silas M. Freeman, in his right hand then and there held, the said William Freeman did then and there beat, bruise, and wound in and upon the face and body and arms of'him-, the said William Freeman,, whereby he the said William Freeman was greatly wounded' and disfigured), and received great bodily harm, contrary,” &c.
    A motion to quash this indictment was sustained by the Circuit Court.

      Gardenhire, (attorney general,), for- the State.
    No appearance for respondent.
   Leonard, Judge,

delivered the opinion of the court.

1. This indictment ought not to have been quashed. There is nothing in the objection as to the venue — time and place are formally laid to all the acts charged to have been committed by the defendant — the assault and battery, and wounding — and there was no necessity, according to the strictest rules of the common law upon this subject, to lay a venue to the statement in reference to the effect of the act done — the allegations “ whereby the prosecutor was greatly wounded, disfigured, and received great bodily harm.”

2. Neither is the omission of the word “present,” in the commencement of the indictment, a valid objection here. A little consideration will make this matter plain enough. The whole statement of the facts constituting the offence — every matter found by the grand jurors upon their oaths — the accusation — all that in strictness constitutes the indictment, follows the omitted word. The commencement of the indictment is but a recital of certain preliminary facts, only necessary to be stated in order to render the instrument intelligible of itself, without having reference to the files and records of the court where it was fonnd. When the record is drawn up in form, the indictment is preceded by a caption, which states the style and meeting of the court, the time and place where it was found, and the jurors by whom it was found; and then the short, formal recital of these facts, usually prefixed to the body of the indictment, is omitted, or rather is superseded by the caption, which states the same facts more at large and with greater precision. The form of a caption may be seen in 3 Bac. Abr., tit. Indictment, let. I, and in Whart. C. L. 3d ed., p. 150, 151; and, if it had been formally drawn up in the present instance, it would have recited that, “ at a Circuit Court hoi den for the county of Hickory, at, &c., on, &c., before, &c., by the oaths of, &c., (naming the grand jurors,) good and lawful men, &c., it is presented that Silas M. Freeman, on,” &e., reciting the indictment in the words of it, to the end, and the error now alleged would not have appeared, or rather would have been supplied by the caption.

But, in our practice, the caption is not always drawn up in form; but upon appeal, or in error, copies of all the entries upon the record in relation the matter are sent to this court, and these are accepted here in lieu of the formal caption, that it was the duty of the clerk to have drawn up from them.

The caption, of course, is no part of the indictment; but it must appear upon the face of the. record, while the cause is in the court where the indictment was found, and from the transcript of the record, after its removal into this court upon appeal or writ of error, not only that the indictment is sufficient in form and substance, but also that it was properly preferred by a lawful grand jury to a court haying jurisdiction over the matter ; and if all this does not appear, it is error of which the defendant may take advantage. (Whart. Grim. Law, 3d <ed., p. 150,154.) But if it does appear, it is sufficient, although the commencement of the indictment be wholly omitted, and certainly all this does sufficiently appear upon this record, although not as formally as it would have appeared had the record been drawn up in due form. Our law (Practice and Proceedings in Criminal Oases, art. 3, secs. 20, 21) requires the foreman of the grand jury, when twelve of the grand jurors concur in finding an indictment, to certify upon it, under his hand, that it is a true bill, and to present it to the court in the presence of the jury ; and this record shows that this indictment was so certified by the foreman, and presented to the court against the defendant, for a felonious assault. The body of the indictment, without the commencement, contains a formal narration of every matter necessary to constitute the alleged offence, and this the record shows was presented by the grand jurors, upon their oaths, to the court, as a written accusation against the defendant.

The judgment must be reversed, and the cause remanded;

Judge Ryland concurring ; Judge Scott dissenting-


text:
    The State, Respondent, vs. Bailey, Appellant.
    1. An indictment framed upon tKe 38tli section of the 2d article of the act concerning crimes and punishments, (K. C. 1845,) charged that the defendant did “ on, &c., at the county of L., unlawfully and feloniously make an assault on one D. E., and did. then and there feloniously strike him, the said D. E., with a large block of wood, being a dangerous weapon, whereby he, the said D. E., was maimed, wounded and disfigured,” &e. Held, no venue to the maiming, wounding and disfiguring was necessary, there being a venue to the assault and stroke.
    2- In an indictment under that section, a charge that ihe defendant “unlawfully and feloniously made an assault on one D. E., and feloniously struck him, the said D. E., with a large block of wood, &c., whereby the said D. E. was maimed, wounded and disfigured, and received great bodily harm,” &c., contains a sufficient statement of the circumstances which would.have made the offence murder or manslaughter, if death had ensued. (Jennings v. The State, 9 Mo. 852; Carrico v. The State, 11 Mo. 579, and The State v. Magrath, 19 Mo. 678, affirmed.)

      Appeal from Laclede Circuit Court.

    The defendant was indicted under the 38th section of the 2d article of the act concerning crimes and punishments, (R. C. 1845,) for assaulting and wounding one David Enix, under circumstances which would have constituted murder or manslaughter, if death had ensued. The indictment is set out in the opinion of the court.
    At the trial, it appeared in evidence that Cox, a brother-in-law of the defendant, and Enix, who was somewhat intoxicated, were engaged in an angry dispute, in the course of which Cox drew a club and Enix a knife. The defendant,, who' was standing by, made some remark to Cox about the knife, whereupon Enix said he could whip Cox or any of his relations. The defendant told Enix that he must take that back, as he himself was one of the relations. Some further words passed, when the defendant picked up a block of wood, (described by one witness for the State as being of the siz.e of his two fists, by another as about three inches square,' and by a witness for the defendant as half an inch thick, two or three inches wide, and half as large as his fist,) and threw it at Enix, hitting him on the face and causing the blood to start. He then picked up what one witness called a slab,, another a paling, and another a stick, with which he advanced upon Enix and struck him several times. The slab was described as about three or four inches wide, and an inch thick at one end, and tapering to a point at the other. Enix testified that he received an injury upon his face, the scar of which remained at the time of the trial, and that a bone in the back of his right hand was broken.
    The court gave the following instructions on behalf of the State, the defendant excepting:
    1. If the jury believe from the evidence that the defendant, at any time within three years before the finding of this indictment, and in the county of Laclede, wounded David Enix with any block or stick of wood, by striking him therewith, and that such block or stick was a dangerous weapon, or calculated to produce death, they must find the defendant guilty, and in that case, the size of the wound is not important, if the weapon was a dangerous one. Eut if the weapon was not a dangerous one, the defendant is not guilty of wounding, unless the wounds were of a dangerous character, from which death might probably have ensued.
    2. If the jury believe from the evidence that the defendant, at any time within three years before the finding of this indictment, and in the county of Laclede, and with any block or stick of wood, and by striking David Enix with the same, inflicted great bodily harm upon the said Enix, they must find the defendant guilty.
    3. If the jury believe from the evidence, that the defendant, at any time within three years before the finding of this indictment, and at the county of Laclede, with any block or stick of wood, and by striking David Enix therewith, disfigured the said Enix by such striking, they must find the defendant guilty.
    4. If the jury believe from the evidence, that the defendant-, at any time within three years before the finding of this indictznent, and in the county of Laclede, with any stick or block of wood, and by striking David Enix therewith, maimed the said Enix, they must find the defendant guilty.
    5. Although the jury find from the evidence that David Enix may have used abusive language to the defendant, it is no justification «to defendant, if the defendant commenced the first ¡assault upon Enix.
    The following instructions asked by the defendant were refused :
    1. If the jury believe from the evidence that Enix commenced the difficulty, and that the defendant struck merely in self-defence, when he had reasonable cause to apprehend that Enix was about to do him some great personal injury, and that there was immediate danger of such injury being inflicted, they ought to find him not guilty.
    2. And even if the jury should believe from the evidence, that defendant wounded said Enix, and that the same was not done in self-defence, yet unless they further believe that the block or stick used was a dangerous weapon, or one calculated to produce death, or unless he used the weapon, if not dangerous, in a mapner calculated to produce death, they ought to find him not guilty, unless they further find that the wound was of a dangerous character, by which death might probably have ensued, or that said Enix received great bodily harm by the blows inflicted.
    The following instructions were given by the court in lieu of those asked by the defendant:
    1. If the jury should believe from the evidence that defendant wounded said Enix, yet unless they further believe that the block or stick was a dangerous weapon, or a weapon calculated to produce death, or unless he used the weapon, if not dangerous, in a manner calculated to produce death, they ought to find him not guilty on the charge of wounding, unless they further find that the wound was of a dangerous character, by which death might have probably ensued, or that said Enix received great bodily barm by tbe blows inflicted, or was maimed or disfigured.
    2. If tbe jury have a reasonable doubt of tbe guilt of tbe defendant, they will acquit bim.
    Tbe defendant was convicted, and after motions for a new trial, and in arrest of judgment, appealed to this court.

      F. P. Wright, for appellant.
    1. The indictment was insufficient, because it did not state such facts as to show that tbe defendant would have been guilty of manslaughter if death bad ensued. The main requisites of an indictment for manslaughter should have been stated. (Chitty’s Crim. Law, 218, 227. 2 Hawk. 334, § 77.) It should have stated that the wound was inflicted upon tbe body of Enix, and on what part of tbe body. (2 Hawk. chap. 23, § 80. 2 Hale, 185, 186.) It should have shown that the weapon used was a deadly weapon, or one calculated to produce death, or it should have so shown the manner of the injury as to make it appear that death might have probably ensued from it. 2. As regards the alleged maiming, the charge is worthless. The indictment should have shown a hurt in some part of the body of Enix, whereby he was rendered less able in fighting, either to defend himself or annoy his adversary. (1 Hawk. p. 175, c. 34, § 1. 1 Chitty’s Crim. Law, 784, 786.) 3. All the alleged injuries are charged without stating either time or place. This defect is fatal. {Irven v. The State, 13 Mo. 306. Lester v. The State, 9 Mo. 658.) 4. The 2d, 3d, and 4th instructions given for the State were unsupported by the evidence. There was no evidence whatever of the maiming or disfiguring, and it is submitted whether there was any evidence tending to prove great bodily harm. 5. The instructions asked by the defendant should have been given.

      Gardenhire, (attorney general,) for the State.
    1. The indictment is substantially good. (9 Mo. 852. 11 Mo. 579. 19 Mo. 678.) 2. The instructions are substantially correct. (9 Mo. 852. 11 Mo. 579.)
   Ryland, Judge,

delivered the opinion of the court.

The defendant was indicted for a felonious assault and battery on David Enix, at the January term of the Circuit Court of Laclede county, in the year eighteen hundred and fifty-four.

He was arrested and tried on this indictment at the March term, 18.55, and was found guilty, and sentenced to pay a fine of hundred dollars and be imprisoned in the county jail for three months.

The defendant moved for a new trial, and also in arrest of judgment. These motions being overruled, he excepted to the opinion of the court, and brings the case here by appeal.

The counsel for the defendant insists before this court that the indictment is not sufficient, and that improper instructions were given and proper instructions refused upon the trial in the court below.

The indictment is found upon the 88th section of the 2d article of the act concerning, crimes and punishments. (R. C. 1845.) This section declares, If any person shall be maimed, wounded or disfigured, or. receive great bodily harm, or his life be endangered by the act, procurement or culpable negligence of another, in cases and under circumstances which would constitute murder or manslaughter if death had ensued, the person by whose act, procurement or negligence such injury or danger of life shall be occasioned, shall, in cases not otherwise provided for, be punished,”'&c.

The indictment charges that William Bailey, late, &c., did on the 10th day of November, A. D. 1858, at the county of Laclede aforesaid, unlawfully and feloniously make an assault on one David Enix, and did then and there feloniously strike him, the said David Enix, with a large block of wood, being, a dangerous weapon, whereby he, the said David Enix, wa.s maimed, wounded'and disfigured, and received great bodily harm, under such circumstances as would have constituted manslaughter if death had ensued, contrary, &c.

The counsel for Bailey objects to the indictment, first, because there is no venue to the maiming, wounding and disfiguring charged in the indictment. To this objection, it is well answered that there is venue laid to 'the assault and to the stroke, which is sufficient. In the second place, he objects that the indictment does mot show that if death had ensued, it would have been murder or manslaughter. This objection is also not well taken, for it is clear that if one unlawfully and feloniously strike another, and death ensue, this is at least manslaughter. In our opinion, there is no necessity to state the circumstances more minutely — the assault and the stroke are charged to have been made unlawfully and also feloniously. Now let death ensue from such an act, and who will deny that the homicide is either murder or manslaughter ? No other circumstances -than those described in this indictment are required to complete the offence mentioned in this section. The unlawful and felonious act, producing the maiming, wounding and disfignring, has been stated and charged distinctly, and it is properly averred that such maiming, wounding and disfiguring was caused by such unlawful and felonious act.

See cases heretofore before this court, under this same section; for the codes of 1835 and 1845 contain the same section, though in that of 1835 it is numbered 35 instead of 38, of art. 2, Crimes and Punishments. In State v. Jennings, (9 Mo. 852,) the indictment is nearly word for word like this, with the exception of the party’s name. I mean the charging part is substantially the same. This was considered good. Carrico v. The State, (11 Mo. Rep. 579,) upon the same section. In 19 Mo. Rep. 678, the case of The State v. Jennings is referred to, and the doctrine therein sanctioned.

So far as regards the objections urged against the indictment in the present case, I might have referred to these cases and rested our judgment thereon. The indictment is substantially good.

In looking over the record, we find the court was warranted in giving the instructions on the part of the State from the evidence in the case. The instruction given by the court, in lieu of the defendant’s 2d instruction, went as far for tbe defendant as the law warranted ; and there is no evidence to authorize the first instruction asked for by the defendant, consequently the court properly refused it.

Upon the whole record, we See no error committed to the prejudice or injury of the defendant. The law of the case was fairly laid down by the court, and we will not disturb its judgment. Let the judgment below be affirmed; the other judges concurring.


text:
    The State, Appellant, vs. Bohannon, Respondent.
    1. Under the 38lh section of the 2d article of the act concerning; crimes and punishments, (R. C. 1845,) an indictment which charges that the defendant, “ on, &c., at, &c., in and upon one 1). Jb. unlawfully and feloniously an assault did make> and with a certain rock the said L. unlawfully and felo-niously did then and there beat, bruise and wound, in and upon the head of him, said L., and did then and there bite off the thumb of him, said L., whereby he, the said L., was then and there greatly maimed, wounded and disfigured, and received great bodily harm, contrary,” &c., is good. (The State v. Bailey, ante, affirmed.)

      Appeal from. Laclede Circuit Court.

    The defendant was indicted under the 38th section of the 2d article of the act concerning crimes and punishments, (R. 0. 1845.) The indictment charged that the defendant, “ on the 1st day of January, 1852, with force and arms, at the county of Laclede aforesaid, in and upon one Dyson Lovelace, in the peace of the state then and there being, unlawfully and felo-niously an assault did make, and that the said Bohannon did then and there, with force and arms, unlawfully and feloniously, and with a certain rock, which he, the said Bohannon, in Ms right hand then and there had and held, the said Lovelace did then and there beat, bruise and wound in and upon the head of him, said Lovelace, and did then and there bite off the thumb of him, said Lovelace, whereby the said Lovelace was then anff there greatly maimed, wounded and disfigured, and received: great bodily harm, contrary,” &c.
    A motion to quash this indictment was filed, and the following reasons assigned : 1. The indictment does not charge that' defendant committed the assault on purpose and of his malice aforethought, in the words of the statute. 2. The indictment-does not charge that the rock used by defendant was a deadly weapon. 3. There is no dangerous wound charged to have been inflicted with said rock. 4. The offence charged in the indictment is double.
    This motion was sustained, and the circuit attorney excepted! and appealed to this court.

      Gardenhire, (attoney general,) for the State,
    submitted the' case on brief.
    No brief or appearance for respondent.
   Ryland, Judge,

delivered the opinion of the court.

This indictment is under the 38th section of the 2d article of" the act concerning crimes and punishments, (R. C. 1845,) and' is good and sufficient under that section. There is no necessity to aver malice aforethought. The indictment is not drawn under the 33d section, but under the 38th, and there is no pre-tence for supposing the indictment not good and sufficient. It would puzzle any criminal pleader to draw a better indictment under this 38th section.

At this term of the court, we had another case before us-complaining of the insufficiency of the indictment under this-same section, (The State v. Bailey, ante,) and to the opinion: in that case we refer as decisive of this.

It is to be regretted that the courts will still continue to> quash indictments, instead of trying and; punishing the guilty, and permitting the innocent to have the benefit of trial and acquittal. (See State v. Jennings, 9 Mo. 852. Carrico v. State, 11 Mo. 579. McGrath v. The State, 19 Mo. 678.) There being not the slightest grounds to quash this indictment, the judgment of the Circuit Court is reversed, and the cause remanded for further proceedings therein; .the other -judges concurring.


author: Scott, Judge,

text:
    The State, Respondent, vs. Gray, Appellant.
    1. An indictment of several under the 38th section of the 2d article of the act concerning crimes and punishments, (R. C. 1845,) which charges that the assault was with a “ knife which they in their right hand then and there held,” is bad.

      Appeal from Polk Circuit Court.

    Gray was indicted with others, under the statute, for a felonious assault, and upon a separate trial was convicted. No motion to quash the indictment or arrest the judgment was made in the court below. At the trial, the court excluded evidence to show that the party assaulted was trespassing upon land of which defendant was in possession at the time of the assault.

      F. P. Wright, for appellant,
    in his brief, relied upon the exclusion of the evidence and -error in the instructions for a reversal of the judgment.
    Gardenhire, (attorney general,) for the State.
   Scott, Judge,

delivered the opinion of the court.

The judgment rendered in this case must be arrested for the defects contained in the indictment. The defendants are charged under the 38th section of the act concerning crimes, 2d article, with having jointly made an assault; and several being indicted, it is charged that they, with a knife, which they then and there with their right hand held, made an assault, &c. This is an impossibility. It is on the face of it false, and must be bad. The proper mode, in such cases, is to charge one of the defendants with having made the assault, and the others being present, aiding and abetting, will be as much implicated as though they had actually made the assault. Although the of-fence might have been laid under the section, without the allegation deemed objectionable, yet, as the indictment contains the averment, and that averment shows that the thing charged to have been done was impossible, the indictment cannot be sustained. Judgment reversed;

Judge Ryland concurring; Judge Leonard not sitting.