THE STATE v. RAINEY CRUTS, Appellant
SUPREME COURT OF MISSOURI
May 26, 1921
288 Mo. 107
Division Two
It will be noticed that the information does not charge that Pearson was not a resident of the State one year next before the election, but that he was not a resident of Pemiscot County. A voter is not required to be a resident of the county for more than sixty days. It further says that he was not a resident at the time “in said election precinct in said Virginia Township.” The statute does not require that he shall live in the precinct in which he voted, but only that he shall vote in the township in which he resides. The information fails to charge that defendant was an illegal voter either in not having resided in the State for the requisite time, or in the county for the requisite time, or in failing to reside in the township in which he sought to vote. The information, therefore, charges no offense.
The judgment is reversed and the defendant discharged. Railey and Mozley, CC., concur.
PER CURIAM:—The foregoing opinion by WHITE, C., is adopted as the opinion of the court. All of the judges concur.
THE STATE v. RAINEY CRUTS, Appellant.
Division Two, May 26, 1921.
1. ASSAULT WITH INTENT TO KILL: Instruction for Less Offense. Where the defendant was proceeded against by information under
2. ——: Defense of Brother. Where the defendant and his brother were proceeded against by information, under
3. ——: Evidence: Res Gestae. In a proceeding by information under
4. ——: Instructions: Comment on Evidence. An instruction which is a comment on a portion of the evidence is properly refused.
5. ——: ——: Covered by Instructions Given. An instruction is properly refused where the court has correctly declared the law in another instruction given the jury, which covers the question embraced in the instruction refused.
Appeal from Maries Circuit Court.—Hon. J. G. Slate, Judge.
AFFIRMED.
Lorts & Breuer and Holmes & Holmes for appellant.
(1) In a prosecution under
(1) The evidence in this case did not warrant instruction that the appellant might have been convicted of an assault without malice. In a prosecution of this kind where it shows the defendant either acted with malice aforethought or in self-defense, instructions should not be given for a lower grade of assault. State v. Schloss, 93 Mo. 361; State v. Robb, 90 Mo. 30; State v. Doyle, 107 Mo. 36; State v. McGuire, 113 Mo. 675; State v. Curtner, 262 Mo. 218. (2) The instructions upon self-defense were proper. The evidence does not show that the prosecuting witness attempted to assault appellant‘s brother. Therefore, the court did not err in refusing to instruct upon the question of defending his brother. (3) The acts and conduct of Dan Cruts, brother of appellant, were a part of the res gestae and the court did not err in admitting the testimony as to his acts. State v. Katz, 266 Mo. 493; State v. Vaughn, 200 Mo. 1; State v. Cavin, 199 Mo. 154; State v. Woodward, 191 Mo. 633.
RAILEY, C.—On May 10, 1920, the Prosecuting Attorney of Maries County, Missouri, filed, in the circuit court of said county, a verified information, charging that defendants, Rainey Cruts and D. W. Cruts, on April 14, 1920, in said county, did feloniously shoot one D. W. Bailey, with pistols loaded with powder and ball, in his abdomen and right leg, with the intent to kill and murder him, etc. Said defendants asked, and the court granted, a severance. Thereupon, the State elected to go to trial in the case of State against Rainey Cruts first. The latter entered a plea of not guilty and his trial was commenced before a jury on November 8, 1920.
It appears from the evidence, that defendants are brothers, and that D. W. Bailey, mentioned in the information, is their uncle. The latter, on April 14, 1920,
Dan W. Bailey testified, that no part of the fire reached the fence of either of the Cruts; that at one place, the fire got up within a foot or two of Rainey‘s fence, but they put that fire out and started to continue burning where they had left off; put out the above fire, Just about this time, the defendants appeared on the land of Rainey, on the opposite side of the fence from Bailey‘s. Dan Bailey then describes what occurred, in substance, as follows: That Rainey Cruts said, “We come over here to see about this fire“: that he seemed to be awfully mad; that he said to Rainey, “You needn‘t mind
“Mr. Hutchison: Now, go ahead, Judge, and tell what happened. When the shooting commenced what did you do, if anything? A. I didn‘t do a thing. The first---when they first throwed their guns down on me I didn‘t think they would shoot, and the first shot Rainey Cruts shot he shot me in the abdomen; the second shot he shot me in the leg; and Dan Cruts, the third shot that he shot hit John‘s arm, and the fork just fell off his shoulder, back of his shoulder, and his arm just fell down by his side, and he just turned around and around. Dan Cruts turned then on to me and shot two shots at me, and Rainey Cruts shot two shots at my head. The first two shots—the first shot was in my abdomen, and the next shot in my leg, and the next two shots he held the gun or aimed right on my head—he aimed to hold his gun on my head.
“Q. Did the last two shots Rainey Cruts fired—did they hit you? A. There was two shots hit my hat and I felt one strike one of my ears.
“Q. How long was it from the time they were throwing the rock and the shots were fired? How long a time elapsed? A. Just immediately. Just as quick as he throwed the rock they both went to shooting at the same time—right then.
“Q. How fast were the shots fired? A. Just as fast as they could make their pistols revolve.
“Q. From where you were standing at the time they came up, did you advance towards them after they stopped? A. No, sir.
“Q. Did you draw the fork on them you had in your hand? A. No, sir.
“Q. Did you attempt to stick the fork in Rainey Cruts? A. No, sir.
“Q. Did you walk up to the fence and put your foot on the fence? A. No, sir.
“Q. Did you see your son advance toward Dan Cruts? A. No, sir, he never advanced a bit.
“Q. He never advanced a bit? A. No, sir.
“Q. Did he take the pitchfork off his shoulder? A. No, sir, he had the pitchfork on his shoulder when the third shot was fired.
“Q. And then what became of it? A. It just fell backwards over his back and his arm fell down by his side and he just turned around and around.”
Witness testified, that the fence was rotted down, and was about three or three and half feet high; that he never at any time got on the same side of the fence with Rainey and Dan Cruts; that he was about 16 feet from Rainey when the shots were fired, and that he was never any closer to him; that one of the shots struck him above the right knee.
There was some other testimony of witnesses, as to threats and swearing of both defendants after the shooting was over. The testimony of John Bailey, Oscar Bailey and Rolla Bailey, who were with their father at the time the above transactions occurred, is practically
Mrs. Dan W. Cruts and Mrs. Cook, both testified in substance, that they were forty-five or fifty steps away when the shooting commenced; that they saw Dan W. Bailey and John Bailey, with their pitchforks, advancing towards defendants like they were going to jab them; that John Bailey was after Dan Cruts and old man Bailey was after Rainey Cruts; that Rainey fired the first shot, and they then turned back home and saw nothing more of the shooting.
Rainey Cruts, the defendant, testified in substance, that after he and his brother spoke to Dan Bailey, and they exchanged some words about the fire, Dan Bailey then said, “What are you fellows looking for?” and was mad; that defendant then said to him, “I don‘t care for you burning it just so you don‘t get in the fence“; that about that time, Dan Bailey took a chew of tobacco, and “kinda” nodded his head, and the boys reached on their shoulders for their forks; that John started at Dan and said, “G—d—you,” and Dan Cruts said, “Now, stand back John,” two or three times, and finally reached over to pick up a rock, and John “kinda” stopped; that he (witness) reached over and tapped his brother on the arm and told him not to do that, and his brother Dan dropped the rock; that about the time witness says he got straightened up and turned his head, his uncle Dan Bailey was right at his face almost with a fork; that he would take a little stroke at witness and then gouge; that he hit defendant, jabbed him on the arm and produced a knot there as large as an egg. Defendant further testified as follows:
“So he just got right across on me. Well, I didn‘t want to kill him and the first shot I intended to shoot him in the leg, and he just kept coming and I just went
Dan W. Cruts corroborates his brother Rainey, as to what occurred at time and place of shooting.
Several witnesses testified that defendant had the reputation of being a peaceable, quiet and law-abiding citizen. Some of the witnesses testified that the general reputation of Dan W. Bailey, for truth and veracity was not good, and that he had the reputation of being a quarrelsome, turbulent man. Witnesses were likewise introduced as to the good character of Dan Bailey for truth and veracity, and they testified that he had the reputation of being a peaceable, quiet man.
After the instructions were read to the jury, the latter returned into court the following verdict:
“We, the jury, find the defendant, Rainey Cruts, guilty, as charged in the information, and assess his punishment at imprisonment in the penitentiary for the term of two years.”
Defendant, in due time, filed motions for a new trial, and in arrest of judgment. Both motions were overruled, and the cause duly appealed by him to this court.
I. Under proposition one of appellant‘s “Points and Authorities,” it is asserted that:
“In a prosecution under
“Every person who shall, on purpose and of malice aforethought, shoot at or stab another, or assault or beat another with a deadly weapon, or by any other means or
It is appellant‘s contention, that he was entitled to an instruction, under the evidence, by virtue of
“Upon an indictment for an assault with intent to commit a felony, or for a felonious assault, the defendant may be convicted of a less offense; and in all other cases, 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.”
Several authorities are cited by defendant in support of above contention. We are not disposed to criticise the cases cited, when applied to the facts referred to therein. In construing the two sections of our Statute above quoted, we should keep in mind the particular facts of each case coming before us. It may be conceded, for the purposes of the case, that instances may arise under said sections, in which it would be proper to submit to the jury the question as to whether defendant might be convicted for a lower offense than that called for in
If the evidence in behalf of the State be taken as true, defendant Rainey Cruts, armed himself with a loaded
The physical facts in this case, speak louder than words. It is undisputed, that defendant shot Dan Bailey in his right leg above the knee; that he shot him in the abdomen, tried to shoot him in the head, and only missed the latter by a small margin, as two holes were shot through his uncle‘s hat. The plea of self-defense having been eliminated by the verdict of the jury, it left the case with
II. Appellant‘s second contention is that:
“Under the law a man not only has the right to shoot another in the necessary defense of himself, but has the same right in defense of his brother, and the jury should be so instructed where the evidence warrants it.” [
We have no disposition to controvert the above proposition, where the facts in the case justify the defendant in affording his brother protection. The above principle law, however, has no application to the facts in this case. Defendants were granted a severance, and the case of State v. Rainey Cruts, is the only one pending here for our consideration. It is not claimed, by either the State or defendant, that the latter shot any one but Dan W. Bailey. Appellant is on trial here for shooting his uncle, and not for shooting some other person, while the latter was assaulting his brother. It is not claimed, that Dan W. Bailey was assaulting defendant‘s brother when he was shot by appellant. On the contrary, the latter testified, as heretofore shown, that he shot Dan Bailey, because he claimed the latter was hitting and jabbing him with a pitchfork.
The above contention is without merit and overruled.
“It was error for the Court to admit as a part of the res gestae, evidence as to the act of Dan Cruts (brother of defendant) in shooting at John Bailey (son of prosecuting witness) and to refuse, by proper instruction, to withdraw such evidence from the consideration of the jury in determining defendant‘s guilt.”
The court admitted as res gestae, everything that occurred from the time defendant and his brother came into the presence of Dan W. Bailey, and his three sons, until the shooting was over, and the two Cruts boys left. The conversation, acts and proceedings between said parties, under the circumstances aforesaid, were so interwoven as to present a single, continuous and inseparable transaction. The facts present a typical case, involving the doctrine of res gestae. [State v. Pfeifer, 267 Mo. l. c. 28-9, 183 S. W. 337; State v. Katz, 266 Mo. l. c. 502-3; State v. Anderson, 252 Mo. l. c. 98-9; State v. Vaughan, 200 Mo. 1; State v. Cavin, 199 Mo. 154; State v. Woodward, 191 Mo. l. c. 633; 10 Ruling Case Law, sec. 157, p. 974.]
The Missouri cases supra, conclusively sustain the trial court in holding, that the entire transaction which took place at the time of the shooting was a part of the res gestae to be considered by the jury in passing upon the case.
IV. Defendant‘s instruction “A” was properly refused, because it was a comment on a portion of the testimony. [State v. Adkins, 284 Mo. 680, 225 S. W. 981; Jones v. Ry. Co., 228 S. W. l. c. 784, and cases cited.] It was likewise properly refused, because instruction 4, given by the court, correctly declared the law, and covered the question complained of by appellant. [State v. Hilsabeck, 132 Mo. l. c. 358.]
The judgment below is accordingly affirmed. White and Mosley, CC., concur.
PER CURIAM:—The foregoing opinion of RAILEY, C., is hereby adopted as the opinion of the court. All of the judges concur.