The State v. Johnson, Appellant

Supreme Court of Missouri1883-10

81 Mo. 60

Summary · law.co

Holding. The court affirmed the judgment, holding that the trial court properly instructed the jury that it could convict Johnson of the lesser offense of simple assault and battery under an indictment for felonious assault, and that applying the statute retroactively did not violate the constitutional prohibition on ex post facto laws.

Johnson was indicted in September 1879 for felonious assault on Jesse Clark. At trial, the court instructed the jury that they could convict on the lesser charge of simple assault and battery, and the jury returned a guilty verdict on that lesser offense, imposing a one-dollar fine and costs. Johnson appealed, challenging whether the court had authority to permit conviction on the lesser charge.

The appellate court upheld the conviction. A statute enacted in November 1879 (Section 1655 of the Revised Statutes) explicitly authorized courts and juries to convict of lesser included offenses in cases involving felonious assault. Although the indictment predated this statute, the court rejected Johnson's argument that applying the statute retroactively violated the state constitutional prohibition on ex post facto laws. The court found that a prior Missouri decision (Ex parte Bethurum) controlled and supported the retroactive application of the statute in this context.

The court also found no error in the jury instructions given or in the trial court's handling of instructions Johnson requested. Although the verdict appeared to run against the weight of evidence, the court deferred to the jury's role as judges of witness credibility and to the trial judge's superior position to assess whether a new trial was warranted.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Authority to convict of lesser included offense under indictment for felonious assault
Retroactive application of statute and ex post facto constitutional concerns
Sufficiency of bill of exceptions to show refusal of jury instructions

Procedural posture

Johnson appealed from a judgment of guilty of simple assault and battery, entered after trial in Barry circuit court on an indictment for felonious assault.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Philips, C.

The appellant was indicted in the month of September, 1879, in the Barry circuit court, for a felonious assault upon one Jesse Clark. On the trial, under instructions of the court so authorizing them, the jury returned a verdict of guilty of simple assault and battery, assessing a fine of one dollar and costs. Erom this judgment the defendant has appealed to this court.

I. The principal and only material question to be decided is, the right of the court and jury, under the indictment for a felonious assault, to convict the defendant of assault and battery. The authority for this ruling of the court, rests on section 1655, Rev. Stat. of 1879, which is as follows: “ Upon an indictment for an assault with intent to commit a felony, or for a felonious assault, the defendant may be convicted of a lesser offense; and in all other eases, whether prosecuted by indictment, information or before a justice of the.peace, the jury or court trying the case, may find the defendant not guilty of the offense as. charged, and find him guilty of any offense, the commission of which is necessarily included in that charged against him.”

Prior to the enactment of this section, which did not take effect until November, 1879, no conviction of the simple assault and battery, could have been had under this indictment, Eor by section I, Ch. 83, p. 852, Wag. Stat, Vol. 2, it was provided that: “Hereafter, no assault, battery or affray shall be indictable, but all such offences shall be prosecuted, and punished in a summary manner, before justices of the peace, as hereinafter provided.” The contention of the appellant is, that as the offense and indictment were anterior to the enactment of said section 1655, he is exempt from its operation, by virtue of section 15, Art. 8, of the state constitution, which declares: “ That no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, * * can be passed by the general assembly.” The principle involved, in the opinion of the court, is covered by the decision in Ex parte Bethurum, 66 Mo. 545. Eolio wing that adjudication, the objection in question must be overruled.

II. Complaint is made of instructions given on behalf of the State, and those alleged to have been refused, on behalf of defendant. "We discover no error in the instruction given, touching the offense of assault and battery. As to the instructions asked by defendant, the court is unable to say, from the bill of exceptions, that any of them were refused. The bill of exceptions does not state that they were refused. On the margin of the instructions the words “ given” and “ refused” appear. But this is not sufficient to warrant us in treating the instruction as refused. Barbee v. Hereford, 48 Mo. 323.

III. The verdict of the jury was, so far as the number of witnesses is concerned, against the weight of testimony. And it is quite probable that the j ury being authorized by the provision of the statute in question to- find the defendant guilty of simple assault and battery, under the indictment for a felonious assault, were influenced to-convict of the assault aud battery in consideration of the defendant escaping the graver punishment. But the jury are the judges of the credibility of the witnesses, and the strength of the evidence. And, the trial judge is better qualified to judge of the unreasonableness of the verdict, and the propriety of a rehearing on the facts, than we are,

Iii the absence of glaring indication of a -wreckless disregard of the evidence by the jury, this court will not interfere.

The judgment of the circuit court must, therefore, be affirmed.

All concur.