State v. Bailey

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. 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. 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.)