State v. Jordan , 285 Mo. 62 ( 1920 )

The appellant was charged by information in the Circuit Court of Clark County, under Section 4481, Revised Statutes 1909, with an assault with intent to kill. Upon a trial he was convicted and his punishment assessed at two years' imprisonment in the penitentiary. From this judgment he appeals.

Jasper Milligan, the city marshal of Kahoka, was called to the residence of the appellant, who had been firing off a shotgun in the street and threatening to kill different parties. The marshal found appellant standing before his home with the gun in his hands. As he approached appellant said, raising the gun as if to fire: "You s____ of a b____, you are after me and I am going to kill you." Before he fired the gun it was forcibly taken from him and he and the marshal engaged in a scuffle in which appellant was knocked down and then taken to the police station. He was intoxicated at the time.

I. It is contended in the motion in arrest that the information was not verified by the oath of the prosecuting attorney or one competent to be sworn as a witness. [Sec. 5057, R.S. 1909.] This manner of challenging our attention is notFailure to sufficient to authorize a review of thisVerify assignment.Information.

A motion in arrest goes only to defects appearing on the face of the indictment or information. The affidavit required to be made by the prosecuting attorney or one competent to be sworn as a witness is no part of the charge, but simply verifies it; to question its sufficiency, therefore, on account of a lack of the statutory requirement as to verification, a motion to quash becomes necessary. [State v. Bonner, 178 Mo. 424; State v. Schnettler, 181 Mo. 173; State v. Brown, 181 Mo. 232; State v. McGee, 181 Mo. 312; State v. Tindall, 188 Mo. l.c. 337.]

In the recent cases of State v. Lawhorn, 250 Mo. l.c. 297 and State v. Sykes, 285 Mo. 25, the procedure indicated was pursued, and we held that the omission of the verification was presented in such a manner as to constitute reversible error. If presented as at bar, the holding would have been otherwise.

II. The usual instruction was given declaring the jury to be the judges as to the credibility of witnesses and the weight to be given their testimony. The second paragraphFalse Swearing: of this instruction was as follows:Wilfully.

"In this connection you are further instructed that if you believe that any witness has sworn falsely to any material fact, you are at liberty to reject all or any portion of such witness's testimony."

The omission of the word "wilfully" between the words "has" and "sworn" is assigned as error. We have uniformly held the omitted word to be necessary in an instruction of this character. [State v. Vaughan, 200 Mo. 1; State v. Darling, 199 Mo. 168; State v. Hottman, 196 Mo. 110; State v. Todd, 194 Mo. 377; State v. McCarver, 194 Mo. 717; State v. Milligan, 170 Mo. 215; State v. Hudspeth, 159 Mo. 178; State v. Wright, 134 Mo. 404; State v. Grant, 152 Mo. 57; State v. Duestrow, 137 Mo. 44; State v. Harper, 149 Mo. 514.]

The court gave the following instructions in regard to intoxication:

"Although you may believe from the evidence that the defendant Howard Jordan was intoxicated at the time of the alleged assault yet you cannot consider such intoxication as constituting any excuse, mitigation or extenuation of the allegedIntoxication: offense, neither can you consider suchExcuse. intoxication in determining whether or not such assault was made with malice aforethought or whether or not it was made on purpose.

"Voluntary drunkenness is no excuse for an assault, and if you find from the evidence and believe beyond a reasonable doubt that the defendant assaulted Jasper Milligan, as set forth in instruction number one or number two, you will find the defendant guilty, and it makes no difference whether he was drunk or not at the time he committed the offense."

These instructions correctly declared the law. Voluntary drunkenness is no excuse for the commission of crime. We have so held in a long line of cases, from State v. Harlow, 21 Mo. l.c. 458, wherein instructions asked by the defendant were refused which declared: (1) "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;" (2) "that if the jury believe from the evidence be fore 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, and 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."

Judge RYLAND, speaking for the court in the Harlow case, said: "I dismiss these two instructions by saying that human life, cheap as it is now, 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."

It is true that in State v. Hays, 23 Mo. l.c. 323, the court did not criticize the giving of an instruction asked by the defendant which declared that "although drunkenness is no justification for the killing, yet the jury may take it into consideration in determining the intent of the defendant in doing the act," this cannot be said to sustain the conclusion that a refusal to give this instruction is error. It will be noted that it was given in the Hays case at the request of the defendant and the most that can be said in regard to it is that the court held it not to be error of which the defendant could complain. Any conclusion to the contrary is rebutted by the fact that the doctrine announced in the Harlow case has been repeatedly approved in many later cases.

The propriety of an instruction of the character here under consideration was learnedly and exhaustively discussed in State v. Cross, 27 Mo. 332, and the ruling in the Harlow case was approved. A like conclusion was reached in State v. Hundley,46 Mo. 414. In State v. Dearing, 65 Mo. l.c. 533, the court said: "The questions concerning defendant's condition in respect to intoxication were clearly inadmissible. That subject has been fully considered by this court and it is needless to review former adjudications." In State v. Edwards, 71 Mo. 317, we held that the fact that the defendant was drunk when he committed the homicide was not to be considered by the jury in determining the question of intent.

While it has been held in a few cases in other jurisdictions, (State v. Schingen, 20 Wis. 74; Gates v. Meredith, 7 Ind. 440) that a condition of drunkenness may be considered by a jury as determinative of the intention of the accused in the commission of the offense charged, the general and, we may say, the almost universal rule, to which we have always adhered in this State, is that the defense of voluntary drunkenness cannot be interposed to an offense committed as the immediate result of such drunkenness, and, although there may be no criminal intent, the law will by construction supply same; this under the well recognized principle that one who voluntarily assumes an attitude likely to produce harm to others, despite any specific intention to injure, is responsible for the consequences of his act. [2 Coke, Litt. sec. 247a.] Many recent cases, in determining the matter here at issue, give affirmative approval to this principle, not only in relation to the introduction of testimony in regard thereto, but in the giving of instructions. [State v. Bobbst, 269 Mo. 214; State v. Church, 199 Mo. 615; State v. Woodward, 191 Mo. 617; State v. Stebbins, 188 Mo. 387; State v. West, 157 Mo. 309; State v. Clevenger, 156 Mo. 190; State v. Alcorn, 137 Mo. 121; State v. O'Reilly, 126 Mo. 597; State v. Murphy, 118 Mo. 7.]

We therefore overrule appellant's contention that the instructions given in this behalf were error.

Appellant assigns error in the refusal of the following instruction:

"If the jury shall find from all the evidence in the cause that the gun held in defendant's hands was locked and disabled in such a manner that it was impossible for same to be discharged, then the jury should acquit him."Locked Gun.

The pointing of a loaded gun at the marshal, as charged in the information and as shown by the evidence, constituted an assault and the instruction asked by the appellant was properly refused. [State v. Dooley, 121 Mo. 591; State v. Sears, 86 Mo. 169; State v. Painter, 67 Mo. 84.]

III. It is contended that the verdict is insufficient to support a judgment of conviction. The information charges that the assault was committed upon Jasper Milligan; the verdict found the appellant guilty of an assault upon JosephVerdict. Milligan. It was in the following form:

"We, the jury find the defendant guilty of a felonious assault upon Joseph Milligan on purpose and with malice aforethought as charged in the information and assess his punishment at imprisonment in the penitentiary for a term of two years."

It is a wholesome precept that verdicts should be given a reasonable intendment and a like construction; and are not to be avoided unless it is evident they will work manifest injustice. [State v. Grossman, 214 Mo. 233; Welch v. State, 50 Ga. 128; Arnold v. State, 51 Ga. 144.]

A verdict will not be held bad for informality if the matter in issue may be fully determined from it; the fact that the verdict contains more than is required for a valid finding will not constitute a tenable objection if, when stripped of superfluities, it still contains enough to support a judgment. [State v. Blue, 84 N.C. 807; People v. Boggs, 20 Cal. 433.]

The verdict at bar finds the appellant guilty as charged and assesses the punishment. This was sufficient. [State v. Bishop, 231 Mo. l.c. 415; State v. Martin, 230 Mo. 680; State v. Lawler,220 Mo. 26; State v. Dewitt, 186 Mo. 61.] The name of the injured person as set forth in the verdict was unnecessary and might well, if a formal judgment had been entered, as should have been done, have been rejected as surplusage. The rejection of non-essentials from a verdict will not authorize its avoidance when the remainder fully meets the issue. [State v. Gould, 261 Mo. l.c. 704; State v. Bishop, 231 Mo. 411; State v. Hayden, 190 S.W. l.c. 312.]

The verdicts held not responsive to the issues in State v. Dewitt, 186 Mo. 61, State v. Miller, 255 Mo. 223, and State v. Griffin, 212 S.W. 877, lacked essential elements of the offenses charged, and hence the propriety of our rulings in regard thereto.

The definiteness of the verdict in the instant case and its completeness as to the issue, are such that upon the entry of a judgment thereon it would have constituted a bar to a further prosecution of the appellant for the same offense, provided, of course, there are no other prejudicial errors in the case. Appellant has been deprived of no right and has consequently suffered no injury by reason of the error complained of.

There is a growing and commendable tendency in the appellate courts, in the interpretation of the criminal law, where the record discloses that the accused has had a fair trial resulting in a conviction, not to disturb the judgment upon a mere technicality. As such we regard this contention, and it is therefore overruled.

IV. It does not appear that the remarks of the counsel assisting the State, complained of by the appellant, were properly preserved and hence they are not for ourArgument of consideration.Counsel.

As presented in the motion for a new trial they were intemperate in being outside of the evidence. As the case must be retried, it is not improper to say that this character of argument should not be repeated. Special prosecutors should not permit their zeal for a conviction to color their arguments with personal invective not authorized by the record.

V. Through an oversight no formal judgment was entered in this case. This alone would necessitate a remanding. Added thereto is the error in the instruction as to the province of the jury in weighing the testimony, which renders imperative aJudgment. reversal and remanding that the case may be retried. It is so ordered. All concur.