State v. Spaugh

BURGESS, P. J.

At the October term, 1904, of the circuit court of Iron county the defendant was convicted of an assault with intent to kill one Prank P. Ake, and his punishment fixed at two years imprisonment in the penitentiary, under an information filed against him by the prosecuting attorney of said county. He appeals.

The facts are, substantially, that Ake was passing *149 a livery stable in Ironton, on Ms way to tbe railroad depot in that town, when defendant, wbo was there, said to Ake that he could wMp him. After some words between the parties, Ake went on to the depot, and upon Ms return he again passed the livery stable, m front of which the parties again met, and after a few words passed between them of an unfriendly character, defendant assaulted Ake, striking him several times on the neck and face with a pair of brass knucks. When Ake left defendant and started on in the direction he had been traveling, defendant followed him some sixty or seventy yards, and again assaulted him, struck Mm several blows, knocking him down twice and inflicting upon Mm several bruises and painful injuries.

Defendant is not represented in this court, but in a motion in arrest filed in the court below the point is made that the information is insufficient in that it does not charge defendant with any crime known to the law. The second count of the information under which defendant was convicted is based upon section 1848, Revised Statutes 1899, and is in substantial compliance with that section. It is true that it unnecessarily uses the words “on purpose” and “a deadly weapon,” but these words may be treated as. mere surplusage (Kelley’s Criminal Law and Practice, sec. 579, p. 381; State v. Seward, 42 Mo. 206 ; State v. Chumley, 67 Mo. 41 ), and there will still remain a complete and sufficient description of an offense as designated in section 1848, supra.

The instructions seem to be free from substantial objections.

It is asserted in the motion for new trial that the court erred in permitting Dr. J. Marshall, a witness for the State, to testify over the objection of defendant that “knucks when applied to the head and body would be a deadly weapon,” and in permitting witnesses to testify that “defendant assaulted the prosecuting witness, *150 Frank P. Ake, with, a revolver. ’ ’ There is no merit in either of these. Dr. Marshall was a practicing physician and surgeon of over fifteen years standing, saw and dressed the wounds of the prosecuting witness a few minutes after their infliction, and was clearly competent to testify to their nature, appearance and extent, which was permissible for the purpose of showing that the assault was made with intent to kill, and some instrument used which was adequate for the accomplishment of the purpose intended. So was the fact that defendant had upon his person a pistol at the time of the assault admissible as tending to show the character of the man and that he was prepared for any emergency which might arise on such an occasion.

A point is also made in the motion for a new trial with respect to the verdict, which i's claimed to be “excessive and cruel.” We are unable to concur in this view. The assault was wanton and malicious, in a marked degree, and the punishment imposed by the jury is fully justified by the facts and circumstances attending it, and should not be disturbed.

Finding m> reversible error in the record, the judgment is affirmed.

All concur.