253 Mo. 347 | Mo. | 1913
On an information filed by the prosecuting attorney of Douglas county, charging the
The evidence on behalf of the State was substantially as follows:
During the month of November, 1912, a young man named Emmet Yoeman was teaching school at Walnut Grove sehoolhouse, a few miles from Ava, in Douglas county. On the night of the 2d of November an entertainment was given at the sehoolhouse, which was conducted by Yoeman, the appellant, a large number of others being present. The appellant was heard to say at a livery bam in Ava the afternoon- before the entertainment that he was going there that night and * ‘ tear it up. ” After the entertainment had commenced, while two little girls were singing, accompanied by Yoeman on the violin, appellant went upon the stage in -‘the rear of the singers and began to sing; upon Yoeman’s looking at him he went off the stage shaking his fist at the latter; later while the selling of boxes, a part of the entertainment, was in progress, a disturbance occurred in the rear of the sehoolhouse, among some boys, and several of them were ejected from the room. As Yoeman went towards the rear door, appellant came up the steps cursing, and took hold of Yoeman and the latter gave him a shove, shutting the door. After the door was closed, a brother of appellant, who had been guarding the door with Yoeman, said, “Lot’s open the door, we can keep them out with it open.” Yoeman then opened the door and stepped back. The appellant came up the steps the second time, cursing as he came, saying, “Is that yon, Yoeman?” or “G — d—n you, Yoeman,” and as he said this he cut Yoeman across the face. The cut extended across Yoeman’s nose and one cheek, severing his nose from his face
Two doctors, who arrived several hours after the •cutting, found Yoeman in the care of some young ladies; he was very weak from the loss of blood, and his wounds are described as one across the face ¡and nose, another above the ear, and another on the back of the head. His nose lacked but little of being cut off, being held on by a quarter of an inch of skin on the right side. These doctors also testified that there were no large arteries severed by the cut across the face, and that blood would not flow therefrom immediately after the infliction of the wound; that probably twenty seconds
The evidence on the part of the defense is to the effect that when Yoeman went to quiet the disturbance in the rear of the schoolhouse appellant was pushed out of the door and fell; that it was Yoeman who pushed him out, saying, ‘ ‘ Get out; we are going to have this stopped;” that immediately after appellant struck Yoeman across the face; that before they clinched, no blood was seen on Yoeman’s face and no knife in the hand of the appellant; that after they clinched and fell, appellant yelled, “Pull him off, he is cutting me;” that while certain witnesses were separating the two, one of them was struck over the eye by one of Yoeman’s hands and he received a cut, whether it was by the hand that was holding appellant’s wrist is not stated; this same witness, however, testified' that he saw a knife in appellant’s hand at the time and that Yoeman was holding the wrist of that hand when they separated them; that' after they were separated and Yoeman had been taken to the front part of the house, a woman testified that she took hold of the appellant and he told her to get back, that he meant to cut him; that some one s:aid about this time, “Emmet [Yoeman] is cut mighty bad,” and another said, “He is cut all to hell;” whereupon appellant said, “I am the man that done it.” There was testimony that appellant was under the influence of liquor. He denied making any statements at the livery barn in regard to going to the schoolhouse, and that he had had any words or difficulty with Yoemian before the latter pushed him out of the schoolhouse; that when he fell Yoeman said, “I am putting all the drunk men out of the house; ’ ’ that Homer Martin told appellant not to go into the house with his knife open, and he put it in his pocket; that when he started into the house the second time he said to Yoeman, “Emmet, you are the man that pushed me out of
In rebuttal it was shown that Yoeman had no-knife ; that no one saw any wounds on the appellant that night; and that the only person wounded was Yoeman. It was also shown that a few days after the difficulty one of the witnesses saw appellant and said, “Where are your wounds?” to which appellant said, “I got a cut or two,” but none were to be seen.
The jury has determined ias to the weight of the evidence, which we have no- hesitancy in saying is ample to sustain the verdict. The foregoing somewhat prolix statement of the facts has, therefore, been made only that the color and current of the entire transaction may be fully set forth.
I. The Information. The sufficiency of the.information is questioned. Omitting the formal parts, it is as follows: -
The information is not subject to valid objection. It uses all the essential statutory words, with other allegations, necessary to clearly charge the offense of mayhem. This is all that is required. [Sec. 4480, R. S. 1909; State v. Nerzinger, 220 Mo. 36, 47; State v._ Kyle, 177 Mo. 659, 661.] The rulings of courts of last resort in other jurisdictions upon indictments framed under similar statutes are of like import. [Kitchens v. State, 80 Ga. 810; Guest v. State, 19 Ark. 405; State v. Absence, 4 Port. (Ala.) 397.]
II. Evidence. The court’s rulings on the admission and exclusion of testimony disclose no error upon which can be based a substantial claim of prejudice; in fact, appellant does not so* contend, his assignments being confined, aside from an objection to the sufficiency of the information, to alleged errors in the instructions.
III. Instruction: Broader than Charge. Instruc-' tion numbered 1, given by the court, is complained of as being broader than the information. The instruction is as follows:
“1. If you find from the evidence that Linzy Bun-yard, in the county of Dbuglas and State of Missouri, at the time and place mentioned in the information, did feloniously, on purpose and of his malice aforethought make an assault on one Emmet Yoeman with a knife,
Comparing this instruction with the information it will he seen that the former is framed in the language of the statute, in charging the assault as having been committed with the intent to “kill, maim or disfigure,” while in the information the offense is limited in its terms to an assault with intent to “maim and disfigure.” Appellant’s contention is that the jury was misled by the instruction and as a consequence the defendant was found guilty of an assault with intent to kill, instead of an assault with intent to maim and disfigure.
It is apparent that 'the instruction is broader than the information; but, were the substantial rights of the appellant thereby affected? If this cannot be readily determined, then appellant has not been tried as the law directs, and injury must be presumed unless the record shows to the contrary; if, however, the record does so show, the judgment should not be disturbed for the law gives no redress for a wrong not resulting in an injury. The best record test as to the manner in which this instruction was considered by the jury is the verdict. It is .as follows: “We, the jury,-find the defendant guilty as charged in the information and assess his punishment at five years ’ imprisonment in the State penitentiary.” It will be noted that the verdict by its express terms finds the appellant guilty as “charged in the information,” from which it is evident that the jury either interpreted the words “to kill” in the instruction as placing an additional burden on the State before the appellant could be found guilty of an assault to maim and disfigure, or that the words in question were rejected as surplusage. Upon either
Another class of cases, in which the instructions may be broader than the indictment or information and yet not prove prejudicial, are those in which the added words may be rejected as surplusage because inapplicable under the charge, and, therefore, not tending to mislead the jury. To this class belong State v. Faulkner, 185 Mo. 673, 707, and State v. Scullin, 185 Mo. 709, 712.
•IV. Instruction: Self-Defense. Preliminary to a consideration of instruction numbered 9' in regard to appellant’s entering into the difficulty, and instruction numbered 10 in regard to self-defense, to the giving of which appellant complains, we are confronted with the inquiry as to whether an instruction on the theory of self-defense and its correlative instruction may properly be invoked by the defense in a case of this character. In the few cases in which the matter has been considered, the plea of self-defense has been held to be permissible in a prosecution for mayhem as in cases of homicide, but, in order to-be available in justification of the act, the resistance must be proportionate to the injury offered. [Green v. State, 151 Ala. 14, 15 Am. & Eng. Ann. Cases 81; State v. Skidmore, 87 N. C.
This court has impliedly, at least, held in State v. Bidstrup, 237 Mo. 273, that upon evidence having been introduced in regard to self-defense by either the State or the accused, that instructions in regard thereto are proper in cases of manning, upon the theory that self-defense is an affirmative defense and the: court is required under the statute (Sec. 5231, R. S. 1909) to instruct the jury in writing upon all questions of law arising in the case necessary for the information of the jury in giving their verdict.
If, therefore, it appears that there was any evidence in this case, authorizing instructions in regard to self-defense, the same should have been given, and when given, if found to be prejudicial, they will justify a reversal; but if, on the contrary, the facts do not justify the giving of the instructions, although they may have been improperly framed, if the appellant did not suffer injury therefrom, he should not be heard to com-. plain.
Instruction numbered 9 is to the effect that if the appellant sought or brought on the difficulty or voluntarily entered into same, he cannot justify himself under the law of self-defense. This instruction is erroneous in not stating the intention with which the appellant entered into the difficulty. [State v. Pennington, 146 Mo. 27; State v. Goddard, 146 Mo. 177.]
Instruction numbered 10, while inartificially drawn, correctly states the law in regard to self-defense, and is, therefore, not subject to valid criticism on this account. But the appellant should not be heard to complain on account of the giving of these instructions although improperly worded, because there was no sub • stantial evidence to sustain the theory of self-defense.
A brief review of the testimony will demonstrate the correctness of this conclusion. Appellant was, according to his own statement, under the influence of
Y. Instruction: Teacher May Preserve Order. Appellant contends that error was committed in the giving of the following instruction:
The meeting at the schoolhouse the night the offense was committed,, as shown by the record, was held for the commendable purpose-of affording entertainment for the people of the neighborhood and incidentally, no doubt, to increase their interest in the school. While not unmindful of the provisions of section 10784 as construed in Dorton v. Hearn, 67 Mov 301, regulating the use of public school buildings, the meeting beingUn other respects authorized, we assume, nothing appearing to the contrary, that the statute referred to had been complied with. This being true, in the absence of any showing that a director was present, the teacher then erupted in the district and who was conducting the entertainment, was clothed, from the very necessities of the case, with sufficient power to at least eject a ruffian who sought to enter the school room fo.r the avowed purpose of disturbing the meeting. This was all that the instruction declared the teacher was empowered to do, and it was all, as the evidence clearly shows, that he did. The instruction, therefore, although awkwardly expressed, correctly declares the law applicable to this case, and we overrule appellant’s contention.
From all of the foregoing, the judgment of the trial court should be affirmed, and'it is so ordered.