State v. Davis

Scott, Judge,

delivered the opinion of the court.

The defendant Davis was indicted, with three others, under the 35th and 39th sections of the second article of the act concerning crimes and their punishments. There were two counts in the indictment; the one on the 35th, and the other on the 39th of said sections. The first charges a wilful felonious striking with a dangerous weapon, on purpose and of malice aforethought, with the intent, then and there, Robert Berry .wilfully, feloniously, on purpose and of his malice aforethought to kill. The second count charges that the defendant, with three others, on, &c., at, &c., in and upon the body of one Robert Berry, wilfully and feloniously an assault did make; and that he, the said Davis, with a certain knife, then and there being a deadly weapon which he, the said T. Davis, in his right hand had and held, the said Robert Berry, in and upon the left side, &c., then and there, wilfully and feloniously did strike, cut and thrust, giving to the said Robert Berry, then and there, with the knife aforesaid, in and upon the left side, &c., several dangerous wounds, whereby he, the said Robert Berry, was then and there greatly wounded and disfigured, and received great bodily harm; and that the said John Davis, William Gilmore and Oscar D. Hancock, then and there, wilfully and feloniously were present aiding, helping, abetting, assisting and maintaining the said Thomas Davis the felony aforesaid, in manner and form aforesaid, to do and commit, contrary to the form, &c.

Thomas Davis, who is charged in the indictment as the principal in the first degree, elected to be tried separately, was convicted and appealed to this court. Before his election of a separate trial a motion was made to quash the indictment on grounds, some of which did not affect this defen *396 dant, and he can not therefore avail himself of any advantage to be derived from them. If he is properly indicted as a principal in the first degree, he can not complain that those joined as principals in the second are not properly charged with an offence. The subject has of late been so frequently before the court, that it was generally supposed to be settled, that there is no difference in the guilt of principals in the first and second degree. A principal in the first degree is he who actually commits the crime. A principal in the second degree is he who takes not part in the actual commission of the offence, but is present aiding, abetting and assisting him who does. As the guilt of these parties is in the eye of the law equal, they are all punished alike; and if he, who is only present aiding and abetting those who actually commit the offence, is indicted as the actual perpetrator of it, the indictment is good, and is supported by proof of his presence and countenance, for they in the contemplation of the law are all principals. (State v. Phillips & Ross, 24 Mo. 475 .)

The indictment as against the principals in the second degree has been compared with the approved precedents, and it substantially conforms to them. (3 Chitty’s Crim. Law, 792.) The words of the section, under which the second count of the indictment is framed, are — “if any person shall be maimed, wounded or disfigured, or receive great bodily harm, &c., by the act, procurement or culpable negligence of another,” &c. Now these words do' not require as a part of the description of the offence that the wounding should be felonious. Every felonious act must be charged to have been done feloniously, and the crime here charged is a felony; but this requirement is satisfied by the averment that the assault was made, and that the striking, cutting and thrusting was feloniously done. If the blow which causes a wounding is inflicted feloniously, the wound, the consequence of the blow, must have been made with a felonious intent. Chitty says, it is not necessary to repeat the words “ felo-niously and of malice aforethought” to every allegation; for if the assault be stated to have been thus made, and the in *397 dictment proceed to ayer that the defendant then and there struck, &c., it will be good without repeating them, because the acts are sufficiently connected. (3 Chitty C. L. 738; 4 Coke, 41, b.)

The defendant had no right to compel the State to elect on which count in the indictment she would try him. As but one offence was committed, and the two counts related to the same transaction, it was entirely competent to the State to vary her charges by means of several counts, although under different sections of the statute, so as to meet the proof which might be produced. (State v. Porter, 26 Mo. 201 .)

The objection to the competency of the jurors can not be sustained. The jurors were examined on their voir dire, and stated that they had formed an opinion, but it was upon rumor, and was not such as to bias or prejudice their minds. This has long been the law in this state, and such jurors have invariably been held competent; and the course of decision will not be varied because complaisant men, in a long course of cross-examination by counsel, may give an answer somewhat favorable to those who may wish to exclude them. Such is the growing aversion to serving on juries, that unless this rule is adhered to it will be impossible to obtain competent jurors.

Although the bill of exceptions states that a ground was laid in the examination in chief of Mrs. Rosson for contradicting her, yet that was by way of recital; and we do not find in the evidence of that witness as preserved in the record any sufficient foundation for that purpose. A witness, who will give 'contradictory accounts of a transaction, can not be relied on, but it is very unsatisfactory evidence to prove that a witness has contradicted himself, unless the witness is first apprised of the matter about which he is to be contradicted and of the circumstances and occasion of the declaration. By giving him an opportunity, it may be in his power to explain the matter, to show that he was mistaken, and thereby remove any improper impressions his apparently contradictory declarations may have produced.

*398 As the defendant was found not guilty of the first count in the indictment, it will not be necessary to review the instructions founded on the law peculiar to that count. This will relieve us of the necessity of going into the subject of malice involved in the section on which that count is founded.

The complaint of the second instruction given on the part of the State is in a great measure a revival of the objections urged against the second .count on the motion to quash the indictment. Without repeating what has been already said in relation to the sufficiency of the second count of the indictment, it may be remarked that this indictment avoids the objection taken to that of the State v. Feaster, 25 Mo. 325 ; for it alleges that both the assault was made feloniously, and that the defendant was feloniously stricken, bringing it within the very requirement of that case.

If the second instruction given for the State had stood alone, it could not under the circumstances have been sustained. But the defects of that instruction were cured from the manner in which the first instruction given for the defendant was framed. It was so worded that it must have drawn the attention of the jury to the second instruction given on the part of the State, and the two would necessarily be understood as standing together.

It has already been observed, that the instructions on the subject of malice are out of the case, as the defendant was acquitted of the first count, the only one on which it was material to consider that matter.

The first instruction given for the defendant having stated the circumstances under which his assault on Berry would have been justifiable, the court properly refused the other instructions on that subject, as they were not only unnecesary, but failed to state in a proper manner the facts required by the statute in order to mitigate a felonious assault to one that was justifiable.

Judge Napton concurring,

judgment affirmed.