231 S.W. 602 | Mo. | 1921
Lead Opinion
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 theStatement. 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, *111 owned 160 acres of unimproved land, lying north of the farm of Rainey Cruts, and east of land owned by D.W. Cruts. D.W. Bailey, and three of his sons, who were then living with him, on the afternoon of April 14, 1920, went to the west side of said 160 acres, and burned the grass and leaves east of the east side of D.W. Cruts' land. They had finished that part of the work, had gone to the south side of said 160 acres, north of the land belonging to Rainey Cruts, and were burning east on the Bailey land, when Rainey Cruts saw the smoke, and telephoned his brother Dan. The latter was in the field at work, and his wife and Mrs. Cook, communicated to him the telephone message from Rainey. Shortly afterwards Rainey put his pistol in his pocket, and went out into the field where Dan was at work. After some conversation, Dan went to his own home, put a pistol in his pocket, and returned to where Rainey and the women were. The two men then walked on over to where Bailey and his sons were burning the trash, and the two women claimed to have followed along, forty to fifty steps in the rear, but did not come clear up to where Bailey and his boys were located. Rainey says he had a fork, which he left at a point some distance from where Bailey and sons were at work. As the main controversy, relates to what occurred when the two Cruts boys came up to where Bailey and his three boys were, we have deemed it best to set out the substance of the testimony, as given by the eye witnesses.
Dan W. Bailey testified, that no part of the fire reached thefence 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 *112 about that, Rainey. We will take care of the fire. We don't aim for the fire to get out"; that Rainey said, "That is all right; just so it don't get into the fence;" that just then Dan Crutscommenced accusing John Bailey, his son, of attempting to hit himwith the fork; that Dan Cruts then said, "Don't hit me with that fork. Don't hit me with that fork"; that these remarks were addressed to John Bailey; that Dan Cruts then grabbed a rock, threw it at John, and it hit the top rail of the fence; and justat that time both defendants commenced shooting; they got the guns from out of their pockets; that just as soon as Dan Cruts threw the rock, he put his hand in his pocket, and then just as Rainey threw his gun on witness, Dan Cruts threw his gun on John Bailey; that John Bailey was doing nothing when Dan Cruts said:"Don't hit me with that fork", that John was just standing therewith the fork on his shoulders that Dan Cruts shot John Bailey in the right arm. Witness, who had been formerly judge of the county court, testified as follows:
"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. *113
"Q. What did you say, if anything, during that time? A. I didn't say a word. . . .
"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 anytime got on the same side of the fence with Rainey and DanCruts; 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 *114 the same as that of D.W. Bailey. The doctors testified in substance, that one of the pistol balls struck Dan W. Bailey in the abdomen and lodged against his hip bone.
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 timewitness says he got straightened up and turned his head, hisuncle 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 *115 to shooting wherever I could shoot, and the last shot, the last time he gouged the fork clear past my head and when he did I just jammed the gun right down on his head; I don't suppose the gun was over that far from his head. When I done that he went back to the back of the fence row just as fast as he come across and throwed his fork down and that settled it."
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 Section 3262, R.S. 1919, defendant may be convicted of an assault without malice, and the jury should be so instructed if the evidence warrants it."
Section 3262 supra, reads as follows:
"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 *116 force likely to produce death or great bodilyAssault With harm, with intent to kill, maim, ravish or robIntent to Kill: such person, or in the attempt to commit anyInstruction for burglary or other felony, or in resisting theAssault Without execution of legal process, shall be punished byMalice. imprisonment in the penitentiary not less than two years."
It is appellant's contention, that he was entitled to an instruction under the evidence, by virtue of Section 3693, R.S. 1919, leaving it to the jury to determine whether the assault was committed with malice aforethought, or with intent to kill, or do some great bodily harm, without malice aforethought. Said Section 3693, R.S. 1919, reads as follows:
"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 Section 3262 supra but in each case, the facts must be sufficient to warrant the court in submitting said issue to the jury.
If the evidence in behalf of the State be taken as true, defendant Rainey Cruts, armed himself with a loaded *117 pistol and went to the scene of trouble, where Dan W. Bailey and his three sons were at work on their own premises, engaged in the legitimate business of burning trash thereon. When defendant and his brother approached the division fence, the State's evidence shows, that all of the Baileys were standing from ten to fifteen feet from the fence, with their respective forks on their shoulders; that they remained in that condition, and made no effort to advance on defendant and his brother, or to harm either of them; that defendant, thereupon, pulled his pistol, and without any provocation, shot Dan Bailey once in the right leg above the knee, once in the abdomen, and fired two more shots, which went through his hat. On the other hand, defendant testified, that he put his hand on his brother, told him not to throw the rock at John and, as he turned his head, Dan W. Bailey was almost at his face with the pitchfork, with which he commenced hitting and gouging defendant, without any justification or excuse therefor. He testified, that on thefirst shot, he intended to shoot his uncle Dan in the leg, as he did not want to kill him, but his uncle "kept coming and Ijust went to shooting wherever I could shoot, and the last shot,the last time he gouged the fork clear past my head and when hedid I just jammed the gun right down on his head." On the State's theory, was defendant guilty of a murderous assault on his uncle, without provocation, with a loaded pistol, or did he shoot Dan Bailey, in self defense? Both theories were submitted to the jury under appropriate instructions, and a verdict returned to the effect, that defendant intentionally shot his uncle without provocation.
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 ofself-defense having been eliminated by the verdict of the jury, it left the case with *118
defendant having shot his uncle, as disclosed by the physical facts, without either justification or excuse. Taking the physical facts, in connection with the remaining testimony in the case, we are of the opinion, that the trial court committed no error in refusing to instruct as to a lower grade of assault. [State v. Feeler, 226 S.W. l.c. 17-18; State v. Ray, 225 S.W. l.c. 973; State v. Foster, 220 S.W. l.c. 960-1; State v. Jones, 217 S.W. 22-3; State v. Burns, 278 Mo. l.c. 449, 213 S.W. l.c. 117; State v. Wansong, 271 Mo. l.c. 56-7-8; 195 S.W. 999; State v. Webb,
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." [Sec. 3233, R.S. 1919; State v. Turner,
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____: Defense were granted a severance, and the case of State v.of Brother. 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 wasassaulting 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. *119
III. Defendant's third contention reads as follows:
"It was error for the Court to admit as a part of the resgestae, evidence as to the act of Dan Cruts (brother of defendant) in shooting at John Bailey (son. of____: Res prosecuting witness) and to refuse, by properGestae. 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,
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,
V. We have examined all the matters complained of by appellant, and find no error in the record of which he can legally complain. The case was carefully tried by court and counsel, and the verdict is fully sustained by substantial evidence.
The judgment below is accordingly affirmed. White andMosley, CC., concur.
Addendum
The foregoing opinion of RAILEY, C., is hereby adopted as the opinion of the court. All of the judges concur.