State v. Drumm

BUEGESS, J. On the 10th day of July, 1899, the defendant was convicted in the criminal court of Buchanan county under the second count of an indictment in which he is charged with having feloniously struck, cut and beat one Harvey E. Lewis, with a certain large iron pipe, of the length of four feet and of the weight of four pounds then and there being a dangerous weapon and then and there cutting, beating and bruising him, whereby the said Lewis was maimed and disfigr. od and received great bodily harm. His punishment was fixed at two years’ imprisonment in the. penitentiary. He appeals. On the evening of the 9th of April,1899, the defendant and Harvey Lewis met in a saloon in the city of St. Joseph, where they had a wordy controversy, during which Lewis applied to defendant some very insulting remarks, but they separated without further trouble. About twelve o’clock that night while Lewis, who had returned to the saloon, and was sitting upon a chair with his back towards a door which lead into the saloon, the defendant entered and without any warning to Lewis struck him in the face with a piece of gas pipe, badly breaking his nose and injuring the frontal part of the skull, from the effects of which his eyes were closed, and he was confined to his bed.for several weeks. • The gas pipe with which the injury was inflicted was introduced in evidence but its size and weight were not shown, nor was it shown that the effect of the use of it as alleged would be likely to produce death or cause great bodily harm, or that it was a deadly weapon. The defense was that defendant acted in self-defense. As there was no direct proof that the iron pipe with which the assault upon Lewis was committed was a deadly and dangerous weapon, or that it was “a large piece of gas pipe,” it is claimed by defendant that the court erred in submitting these questions to the jury by the instructions, and [220] in refusing an instruction asked by defendant on common assault. The section of the statute under which the second count of the indictment was drawn and the conviction was had, section 3490, Revised Statutes 1889, does not require that the assault shall be committed with a deadly weapon, but does require that it be made with intent to kill in order to constitute a felony, and, it must follow, that, if it was not necessary for the indictment to allege that the assault was committed with a deadly weapon, it was not necessary that it be so shown by direct proof upon the trial, for it was not necessary that the proof should be any broader than the allegations in the indictment. Besides, the instrument with which the assault was committed and the injury inflicted was before the jury, and when considered in connection with the extent and serious character of the injury inflicted with it, no further, or more direct proof of its deadly character was necessary. Not only this, but the jury were competent to judge from their own observation as to whether or not the gas pipe was a deadly weapon, for as to such things all persons of ordinary intelligence are presumed to know. In Hamilton v. People, 113 Ill. loc. cit. 38, it is said: “The point is made there is no proof that the hoe with which the assault is alleged to have been made is a deadly weapon. The indictment alleges, and the proofs show, that an assault was made upon Parks with a loaded pistol and a hoe. This we think was sufficient. Conceding it was necessary that the deadly character of the weapons with which the assault was made should have been established before the jury (a matter not necessary to be determined), we are of opinion that was sufficiently done by proof that it was done with a hoe and loaded pistol. A hoe, both in popular and legal signification, is per se a deadly weapon, — fully as much so as a loaded pistol or an ax. Such things as all persons of ordinary intelligence are presumed to know, are not required to be proved.” [221] See, also, State v. Shields, 110 N. C. 497. It follows that there was no error in the State’s instruction in this regard, or in refusing the instruction asked by defendant upon common assault. [State v. Musick, 101 Mo. loc. cit. 272.] What has been said applies with equal force to defendant’s criticism upon the State’s third instruction, by which the jury were told that if defendant, “with a large piece of gas pipe,” willfully, but without malice aforethought, made an assault on the witness, Harvey Lewis, and struck him on the head and face, with the intention of killing him, etc. they would find him guilty. The weapon used was a deadly one per se, and it was no usurpation of the province of the jury for the court in effect to so instruct them. But if there were any doubt as to the ruling of the court upon this question it was corrected by the State’s eleventh instruction by which the jury were told that “whether or not the piece of gas pipe was a deadly weapon within the meaning of the law is a question of fact for the jury to decide, in determining which they will take into consideration the character and nature of the instrument, the manner in which it was used, if they believe it was used, and the probable effect of such use.” The instructions taken as a whole presented the case very fairly to the jury. No error was committed we think in the admission or exclusion of testimony. Einding no reversible error in the record, we affirm the judgment. Gantt, P. J., and Sherwood, J., concur.