State v. Duvenick

FERRISS, J. At the January term, 1910, of the circuit court of Moniteau county, the prosecuting attorney, by leave of court, filed his third amended information in two counts, the first of which charged the defendant with felonious assault with a deadly weapon, and the second, with feloniously and unlawfully exhibiting a deadly weapon in a rude, angry and threatening manner, in the presence of one B. F. Brockhausen; both counts being based upon the same transaction. Before proceeding to trial, the defendant, by counsel, moved the court to require the State to elect upon which count in the information it would proceed to trial, which motion was overruled, the defendant duly excepting. At the close of the evidence the State dismissed as to the first count, and elected to stand upon the second count. The trial resulted in defendant’s conviction, his punishment being assessed by the jury at a fine of seven hundred dollars. Judgment was pronounced in conformity to the verdict, from which judgment defendant appeals. The evidence for the State was, in substance, as follows: On the evening of October 25, 1909, B. F. Brockhausen, the prosecuting witness, was leaving the defendant’s premises at California in said county, on his way home, when he heard some one halloa to him to. stop and throw up his hands. He did not at first think that he was the party so addressed, and did not stop until he heard the call two or three times. — 191 — He then looked around, and saw the defendant within twenty feet of him, with a loaded revolver pointing at him. Defendant told Brockhausen to walk into his (defendant’s) house, and Brockhausen did so. When inside he was commanded by the defendant to sit down, the defendant pointing his revolver at him at the same time. Being asked by Brockhausen what he wanted with him, defendant said, “You know what •you have been doing,” but made no further explanation. Brockhausen testified that he “tried to argue the matter” with defendant, telling him that he had done him, no harm and could not understand why he so treated him; that Mrs. Brockhausen came in from her home near by and asked her husband what he was doing .there, and received the answer that he was not there because he wanted to be, but because defendant ordered him to come to his house at the point of a revolver; that she then asked defendant why he should , treat her husband in such a way, and that defendant answered, “I saw him leaving my house — that is why I want him here;” that after some further talk defendant said he didn’t need a revolver for Brockhausen, and laid it upon a dresser, but immediately took it down again, and then ordered both of them from the house. Mrs. Brockhausen’s testimony substantially corroborated that of her husband, but she testified that the defendant did not have the revolver pointed at her husband at the time she entered the room; that defendant held the revolyer in his left hand, flourished it and laid it up when she came in. The evidence for the defense, which consisted of the testimony of the defendant and his two sons, was in substance a denial of any show of anger on the part of the defendant, and of his having pointed the revolver at the prosecuting witness. One of defendant’s said witnesses testified that defendant first asked Brockhausen to stop, and that Brockhausen answered, “You can’t make me stop,” whereupon the defendant — 192 — took a revolver from a tree on his premises, held it in his hand, and told Brockhausen to go into the house with him. It appeared from the evidence for the defendant. that the prosecuting witness had advised defendant’s wife to leave him, and the defendant testified that when he stopped Brockhausen and asked him to go into the house with him, his object was to get Brockhausen to explain why he was trying to break up his family. We will take up the objections made by defendant in his motions for a new trial and in arrest. I. The complaint that the verdict is against the evidence is without foundation. There is ample evidence to sustain the verdict. II. Defendant complains because the court did not compel the State to elect on which count in the information it would go to trial before the evidence was submitted to the jury. On this point it is sufficient to cite the following from the case of State v. Sharpless, 212 Mo. l. c. 203: “Counsel for appellant complain at the action of the court in refusing to compel the State to elect upon which count of the information it would proseeute the defendant. It is sufficient to say of this complaint that this court has repeatedly announced that it is not error to refuse an election where the several counts refer to the same transaction, and as applicable to this case, the record discloses that the defendant was only convicted upon the second count; therefore there is no ground of complaint which can be successfully directed to the action of the court upon the first count. [State v. Schmidt, 137 Mo. 266; State v. Houx, 109 Mo. 654; State v. Pratt, 98 Mo. 482.]” In the Houx case, supra, (l. c. 660), this court said: “Whether the State should be required to elect upon which count in an indictment it will proceed — 193 — to trial is regulated in all cases by sound judicial discretion, but, as a rule, no election will be required when the different counts relate to but one transaction.” It is a rule of practice, well established, in both civil and criminal cases, that where the same transaction is stated in different counts, no election can be required before the introduction of the evidence.' III. Defendant further complains that when the State elected at the close of the evidence to proceed upon the second count only, the court failed to withdraw the first count from the consideration of the jury by a formal instruction to that effect. We think no such instruction was necessary. The State dismissed as to- the first count, and the court instructed the jury in terms upon the second count only, beginning the instruction with the words: “On the second count the court instructs you as follows.” There is therefore no foundation for the claim that the- jury might have convicted on the first count. Furthermore, the record shows that no request was made by the defendant to instruct the jury on this point, and no exception was saved to the action of the court in failing to do so. IV. The fourth instruction is as follows: “On the second count the court instructs you as follows: First. The court instructs the jury that if you believe and find from the 'evidence that the defendant, Henry Duvenick, at the county of Moniteau and State of Missouri, on the 25th day of October, 1909, did feloniously and unlawfully, in the presence of B. F. Brockhausen,.exhibit a deadly weapon, to wit, a loaded pistol, in a rude, angry or threatening manner, and that said pistol was then and there a firearm, you will find the defendant guilty, and assess his punishment at imprisonment in the penitentiary for a term of two years, or by a fine of not less than one hundred dollars, nor more than one thousand dollars, or by im — 194 — prisonment in the county jail not less than fifty days, nor more than one year, or by both such fine and imprisonment.” This instruction properly defines the offense, and is not susceptible to criticism because it failed to state what circumstances would justify the exhibition of a deadly weapon, there being no evidence upon which such exception could be based. V. In his motion in arrest defendant contends that the information does not charge the defendant with a violation of any law of the State in force at the time the alleged offense is charged to have been committed. The offense charged in the information was created by an act passed in 1909 (Laws 1909, p. 452), which in effect amended the law as it formerly stood. In the case of State v. Schenk, decided at this term, and not yet -officially reported, we have fully discussed the question as to when laws passed at the 1909 session of the Legislature went into effect, and under our holding in that case the act in question went into effect ninety days after the adjournment of the Legislature. Reference may be had to the opinion in that case for a full discussion of the subject. The offense having been committed on' the 25th day of October, 1909, it was subject to prosecution under the Act of 1909, which went into effect August 16, 1909. VI. Complaint is made that the letter t is omitted from the word “against” in the closing line of the information, so that the line reads, <?agains the peace and dignity of the State.” We consider this objection unworthy of serious consideration or discussion. Just complaint could be made that our system of jurisprudence is artificial and inadequate were we to hold that this information is bad because of the absence of one letter from one word in the clause, “against the peace and dignity of the State;” .a clause which, although — 195 — required by our Constitution, adds nothing to the substance of the information, and is indeed but a superflous survival of an ancient form of pleading. The omission of the letter t is obviously a clerical error, and, furthermore, agains is idem sonans with the word “against.” Ending no error in the record, the judgment is affirmed. Kennish, P. J., and Brown, J., concur.