271 Mo. 9 | Mo. | 1917
Defendant, charged by an information filed in the Pemiscot Circuit Court, under Section 4482, Revised Statutes 1909, with an assault with intent to kill one Mitt Pruitt, was found guilty by the trial jury and his punishment assessed at imprisonment in the penitentiary for a term of three years. Prom the resulting sentence following this verdict he has, in.the conventional way, appealed.
The facts of the case run briefly thus: On the 23rd of August, 1915, a number of persons, including Mitt Pruitt, the man who is said to have been assaulted, were driving in farm wagons across the corn field of defendant with the intention of proceeding to a neighborhood cemetery in order to bury the body of a small child. It seems that the route which was- being followed by this burial procession had formerly been a road, but that defendant (whether wrongfully or not does not appear) had fenced the same up and had planted it in corn. "While this procession was in the field of defendant the latter suddenly appeared near the wagon occupied by one Kit Brandon and after the use of the conventional opprobrious epithets and after having expressed his intention of exterminating the living portion of the entire procession, began shooting at Brandon. The first shot struck Bran
Although the entire attitude and language of defendant, as we find them among the res gestae of the case, indicate that his anger had been caused by, and the reason of his shooting Brandon and Pruitt was that, the funeral procession was driving through his field without his permission and against his consent, yet his defense was that he had not intentionally shot Pruitt, but shot the latter accidentally while firing at Brandon. The reasons given by defendant when testifying as a witness for himself for his assault upon and his shooting Brandon were that the latter had been criminally intimate with his (defendant’s) wife. Upon the trial, remarkable to say, Brandon, who had then recovered from his somewhat serious wounds, testified for defendant and admitted his intimacy with defendant’s wife, and the fact that knowledge thereof had come to defendant shortly before the shooting. Brandon also swore that defendant was not shooting at Pruitt, but was shooting at the witness. Upon this latter question,,however, the preponderance of the evidence was against defendant and the jury evidently found against him thereon, as their verdict conclusively shows, and we need not trouble ourselves with this point.
Following the case of State v. Mulhall, 199 Mo. 202, the trial court instructed in substance that if defendant weip in fact shooting at Brandon with the intent to kill the latter and in so doing without intending so to do shot and wounded Pruitt, he should go acquit. Notwithstanding this instruction the jury found defendant guilty and
Such further facts as shall serve to make clear the points urged upon our attention will be set forth in connection with our discussion of these points.
Three points alleged to be meet for reversal are urged upon our attention: (a) The insufficiency of the information; (b) the badness of instruction numbered 1, and (c) errors in' the admission of certain evidence.
I. ■ Taking these up in the order in which we set them out, we note the information, omitting verification, venue and merely formal parts, which are conventional and m no wise questioned, is m the following form, to-wit:
“Comes now C. E. Bragg, prosecuting attorney for and within the county of Pemiscot and State of Missouri, who upon his official oath as such prosecuting attorney informs the court that, in the county of Pemiscot and State of Missouri, upon or about the 23d day of August, 1915, one Pearl Baird, upon the body of one Mitt Pruitt, then and there being feloniously, on purpose and wilfully, with a certain deadly weapon, to-wit, a pistol, loaded with gunpowder and leaden balls, which he, the said Pearl Baird, then and there had and held, did then and there make an assault with the intent him, the said Pruitt, then and there to kill, against the peace and dignity of the State.”
While an information similar to the above was held bad in the case of State v. Clayton, 100 Mo. 516, the latter case did not follow precedents, nor has it been followed consistently, but on the contrary wholly ignored by practically all of the later cases. [State v. Hendrickson, 165 Mo. 262; State v. Helton, 234 Mo. 559; State v. Duncan, 237 Mo. 195; Kelley’s Crim. Law & Proc., sec. 579.] The alleged phase of badness and that decided so to be in the Clayton case, consists in the failure to specifically prefix before the allegation of intent the word “felonious.” Stripped of intervening verbiage the information herein charges that defendant “upon the body of one Mitt Pruitt, then and there bemg, feloniously . . . did then and
II. The court nisi gave the below instruction, of which defendant complains, to:wit:
“The court instructs the jury that if you find and believe from the evidence in this case, beyond a reasonable doubt, that at the county of Pemiscot and State of Missouri, on or about the 23rd day of August, 1915, ^ c|efenciant pear] Baird, did then and there make an assault upon the prosecuting witness Mitt Pruitt with a pistol, loaded with gunpowder and leaden balls, and did then and there shoot and wound the said Mitt Pruitt with said pistol and that he did so feloniously,*15 wilfully and on purpose with the intent to kill the said Mitt Pruitt, you will find the defendant guilty of assault with intent to kill as charged in the information and assess his punishment at imprisonment in the penitentiary for a term not exceeding five years or in the county jail not less than six months or hy a fine not less than $100 and imprisonment in the county jail not less than three months or hy a fine not less than $100.”
The specific complaint is that hy this instruction two <rimes are coupled together, and it is urged that defendnt must purge himself of both crimes (with one of which he is not charged in the information) set out in this instruction before he can be acquitted of either'. Upon this contention our attention is directed to the case of State v. Melton, 102 Mo. 683. We do not think the latter case furnishes any sufficient authority for the defendant’s position. It is settled law that upon a prosecution for assault with intent to kill, while thq assáult may exist, be perpetrated and be proven, whether a wound be inflicted or not, yet as the intent with which the assault was made is a necessary element in the case of which proof, direct or circumstantial, must be made, it has been held almost uniformly that the fact that a wound was inflicted is permissible to be proved as evidence of intent. In the case called to our attention the instruction was bad, for it coupled the two offenses by the disjunctive, and clearly allowed the defendant therein to be convicted if the jury found either state of facts to exist. Here, in the instant case, the conjunctive is used, thus requiring the jury to find both state of facts existed before defendant could be convicted at all. In short, an extra burden is put upon the State by requiring as a condition precedent to conviction that the jury find both an assault with intent to kill and a wounding by that assault before defendant shall be found guilty of any offense. A bare reading of the instruction here, in parallel columns with the one condemned, shows the difference in the two cases, and discloses the vice of the latter. The State could well have complained, if the State could appeal and were appealing, for that this instruction broadened the issues, but it helped defendant; it did not harm him. and in short was error committed in his favor
III. Upon the trial the learned court nisi permitted the witness Kit Brandon, who testified for defendant, to be impeached as to veracity, for that in the opinion of impeaching witnesses his reputation for peace quietude was bad. This latter reputation was not in issue, and this was error.. Likewise the court allowed testimony to come in over defendant’s objecti.jl' and exception, as to whether one Tobe Baird, the father of defendant and a witness for the latter, possessed a good reputation for good citizenship, and for abiding by the. law.
In both of these instances the impeaching witnesses gave it as their opinions that the reputations inquired about in the behalves mentioned were respectively either bad, or badly mixed. This was error. Brandon and the elder Baird were but witnesses in the case; so alone the question of their reputations.for truth and veracity was involved, or at most this phase of reputation and that of morality. There was no place in the case for inquiries as to the phases of peace and quietude and lawabidingness — if to express the thought clearly we may coin a word — unless we may judicially notice, as we may not, that a citizen who is not lawabiding or who is not quiet and peaceful, is always a perjurer.
Complaint is also made that the learned court nisi permitted the State to inquire as to the reputation of the defendant himself for peace and quietude, before he had himself put that reputation in issue. This is true, but while this was a potential error of much gravity no proper preservation of it is shown by the record and we are therefore precluded from noticing it.
In view of the fact that this court In-Banc has recently in the Finkelstein case, snpra, held that it is reversible error to give such an instruction, we may he pardoned for refusing to consider further an assignment of error bottomed on the failure to give it; a fortiori, since if the instruction had been given, defendant would he here now urging the giving thereof as error, and citing the Finkelstein case as authority for such contention.
For the errors noted let the case he reversed and remanded for a new trial.
