
    The State of Missouri, Respondent, v. D. M. Boyer, Appellant.
    Kansas City Court of Appeals,
    April 5, 1897.
    1. Indictment: assault and battery: distinct offenses. An indictment for assault and battery on two distinct persons in two counts charging separate offenses will not be quashed on the ground of improper joinder.
    2. -: -: willfully. An indictment for assault and battery need not charge that the act was willfully done.
    3. -: -distinct offenses: election. The state is not required to elect on which count of an indictment charging two assaults it will proceed to trial.
    4. Assault and Battery: evidence: school teacher: corporal punishment: jury. A school teacher has the right to inflict area' sonable corporal punishment for violation of reasonable rules, but he has no right to inflict excessive or malicious punishment; and whether the punishment is such is for the jury.
    5. -: evidence: malice: instructions. As it is not necessary to charge the assault as willfully or maliciously done, it is unnecessary to submit the question of malice to the jury, since the word assault itself carries the idea of willfulness or malice.
    
      Appeal from the DeKalb Circuit Court. — Hon. W. S. Herndon, Judge.
    Appirmed.
    
      Simmons, Keller é Castle for appellant.
    (1) The court erred in overruling the motion to quash the indictment for the reason the indictment charges the defendant with the commission of two separate and distinct offenses and has improperly joined them in one indictment. Maxwell, Criminal Procedure, sec. 53-516; Bailey v. State, 40 S. 442; B. B. 
      
      v. Trueman, & C. & P. 727; State v. Nelson, .29 Mo. 329; Com. v. Hill, 10 Cash. 539; Com. v. Sullivant 104 Mass. 552. (2) Because the indictment does not charge that the offense was done willfully. Bishop on Criminal Proceeding, secs. 524 and 525, and authorities cited. (3)'The court erred in overruling defendant’s motion asking that the attorney for the state be compelled to elect upon which count of the indictment the state would go to trial. Maxwell, Criminal Procedure, sec. 53-516; Bailey v. State, 40 S. 442; B. B.v. True-man, 8 C. & P. 727; State v. Nelson, 29 Mo. 329; Com. v. Sullivan, 104 Mass. 552; State v. Cumins, 31 Kan. 376; State v. Sclnoeiter, 27 Kan. 500, 5Í2; State v. O’Conn, 31 Kan. 383. (4) The court erred in refusing to sustain the demurrer to the evidence asked by defendant at the close of the testimony offered by the state. There was no competent evidence tending to show the defendant guilty of the offense charged. There can be no conviction in this case in the absence of a criminal intent fairly inferred from the evidence. The evidence shows that defendant acted under the power given him as a school teacher, and there being no evidence of the act being done willfully and maliciously the defendant’s demurrerto the evidence should have been sustained. (5) The court erred in giving plaintiff’s instruction number 4, because this instruction told the jury that they could find the defendant guilty for the punishment inflicted and because the instruction failed to tell the jury that they must find that the act was done willfully or maliciously. The court erred in refusing to give instruction number 0 because there was no evidence of malice, and all the evidence in this case showed that there was no malice.
   Smith, P. J.

The defendant was indicted for common assault. The indictment contained two counts. The first of which charged the defendant on, etc., at, etc., did unlawfully assault, touch, strike, beat, and wound one George Aughinbaugh by then and there striking him, the said George Aughinbaugh on the body with a stick against the peace and dignity of the state. The other was an exact duplicate of the first, except to the name of the party assaulted — Dillard Gregory. There was a trial resulting in the acquittal on the first count and a conviction on the second.

The appealing defendant complains of the action of the trial court in overruling his motion to quash the indictment, the first ground of which was that two separate offenses were improperly joined. This objection can not be sustained. State v. Kirby, 7 Mo. 317; State v. Storrs, 3 Mo. 10; State v. Heinze, 45 Mo. App. 403.

The second ground was that the indictment did not charge the assault was ivillfully made. It -appears to have been drawn in conformity to the approved precedents and was not subject to .the defendant’s objection. Kelly’s Crim. Law & Prac. 377; Bishop on Crim. Prac., secs. 55—58; State v. Bray, 1 Mo. 180; State v. McWaters, 10 Mo. 168.

The defendant further complains that the court erred in its action in refusing to require the state to elect on which count of the indictment it The law is well settled in this state that when the offenses WOuld pi’OCeed to trial. charged in the indictment are misdemeanors the court will not require the state to elect on which count it will proceed. State v. Jackson, 17 Mo. 541; State v. Wilson, 19 Mo. 393; State v. Fletcher, 17 Mo. 426; State v. Meyers, 20 Mo. 410; State v. Heinze, ante.

The defendant complains further of the court’s action in disallowing his demurrer to the evidence. In this we think there was no error. There was evi(ience adduced by the state tending to prove that the defendant, a teacher in x ' the public schools, with a stick or switch three quarters of an inch in diameter at the larger end and three or four feet in length, chastised two of his scholars, the same being the persons named in the indictment, by striking and beáting them on the back, neck, arms, and legs to such an extent that ecchymosis resulted. The evidence, which we need not set forth here, was sufficient, in our opinion, to carry the case to the jury under proper instructions. The court in a great number of instructions told the jury in effect that a school teacher has the right to inflict a reasonable corporal punishment upon a pupil for a violation of any reasonable rule of his school, but that he has no right to inflict unreasonable and excessive corporal punishment, or with malice. This was undoubtedly the law. Bishop on Crim. Law, sec. 886; Dritt v. Snodgrass, 66 Mo. 286. It is always a question for the jury to decide whether the punishment is excessive. Wharton’s Crim. Law, sec. 632, and cases there cited in note 1.

The defendant objects that the court erred in giving instruction number 2 for the state which declared that: “Even though the jury may believe from the evidence that Dillard Gregory did violate a mle of the defendant’s school, yet, if the jury believe from the evidence, beyond a reasonable doubt, 'that the defendant inflicted upon him unreasonable and excessive corporal punishment the .jury will find the defendant guilty under the second count in the indictment.” Whether the punishment inflicted was unreasonable and excessive is a question for the jury, for for that reason it did not declare that the “act was done willfully and maliciously.” As it was unnecessary, as we have seen, to charge in the indictment that the act was done willfully or maliciously (Bishop’s Grim. Law, sec. 58) it was likewise unnecessary for the court to submit such questions of fact to the jury by said instruction. The word “assault,” as is said by the author just quoted — sec. 58, ante — carries with it the idea of willfulness or malice in a legal sense.

The court however gave an instruction for defendant to this effect: “That if the school board in the school district did not furnish the defendant as teacher of said school rules for the government of said school at the time said defendant was employed to teach said school by the school board, then the court instructs you that the defendant, as teacher of said school, had a lawful right to adopt such reasonable rules for the government of said school as was neeessaiy for the proper management of said school, and the presumption is that it was in the exercise of, and in the bounds of his lawful authority. And you are further instructed that the burden of proof is upon the state to prove to your satisfaction beyond a reasonable doubt that the punishment inflicted by defendant upon the persons of Aughinbaugh and Gregory was done with a malicious intent, and unless you do so find you must acquit defendant (provided you further believe such punishment was not unreasonable or excessive).” So that it is seen that the question was after all left to the jury to say from the evidence whether the defendant acted maliciously in chastising his said pupils.

And in another instruction for defendant the word “malice” as used in the defendant’s instructions was properly defined not to mean spite or ill-will, but an unlawful state of the mind, such a state of mind as one is in when he intentionally does an unlawful act. In this it appears that the instructions were exceedingly favorable to defendant. He has not 'the slightest ground, as we think, to find fault with the instructions of the court.

The ease was fairly submitted to the jury under the evidence and instructions and with .the verdict we are unauthorized to interfere. The judgment .will be affirmed.

All concur.  