209 Mo. 403 | Mo. | 1908
This is an appeal from a judgment of the circuit court of Randolph county. On the 26th day of June, 1906, the prosecuting attorney filed an information in the circuit court, duly verified, charging the defendant with having, on the 18th day of June, 1906, at said county, in and upon the body of Polie Bealey, feloniously, on purpose and of his malice aforethought, made an assault and with a, deadly weapon, to-wit, a baseball bat of the length of thirty-one and three-quarters inches and of the weight of one and one-half pounds, which he the said Luther Bartlett in his hands then and there had and held, him, the said Polie Bealey, did then and there feloniously, on purpose and of his malice aforethought strike, beat and wound, with intent then and there him the said Polie Bealey feloniously, on purpose and of his malice aforethought to kill and murder. The defendant was arrested and duly arraigned, and at the October term, 1906, was tried and convicted and his punishment assessed at six years in the penitentiary. Having duly moved for a new trial and in arrest of judgment, and his motions having been overruled, he appeals to this court.
The evidence on the part of the State tended to prove that the defendant was a stepson of P’olie Bealey. It appears from the evidence that on Sunday preceding the assault on Monday, the prosecuting witness, Bealey, and his wife had a difficulty and the prosecuting witness slapped his wife. The defendant came home to the
The defendant testified in his own behalf and gave his version of the affair as follows: “He had me arrested. They called my trial at one o’clock, and after the trial I went down the street and met my sister and we started back up Clark street and Mr. Bealey, the prosecuting witness, came up and he commenced talking to my sister, and she said, never mind, she did not want to talk to him, and me and him got into some words and I grabbed the bat and hit him. ’ ’ On cross-examination, he was asked what he hit him for and he answered, “Because he made me angry. He was annoying my sister. I did not know what he wanted to talk about.” Q. “He was not trying to hurt you?” A. “Not that I know of; the prosecuting witness had nothing, and when I hit him my sister hollowed and I dropped the bat.” Asked if he did not hit Mm the second time, he answered that he “did not remember.” “When he wanted to talk with my sister, he said it was none of my business, and then I took up the bat and hit him.” There was much irrelevant evidence introduced without objection on either side, which it is unnecessary to consider or comment upon. The court instructed the jury on assault on purpose and with malice aforethought, and, at the request of the defendant, on common assault. The court also instructed on reasonable doubt, and defined the words “on purpose and of his malice aforethought, ’ ’ and also instructed on the presumption of innocence.
The information is sufficient in form and substance under section 1847, Revised Statutes 1890. The only ground upon which reversal is sought in this court is that the court erred in instructing on assault with malice aforethought and in not instructing the jury under sections 1848 and 1849'. It is insisted that the evidence
In our opinion the verdict of the jury was amply warranted by the testimony in the case, the defendant had a fair and impartial trial, and the judgment should be and is affirmed.