State v. Emery

| Mo. | Oct 15, 1882

Sherwood, J.

The defendant was indicted for assault with intent to kill, and on trial had, was convicted, and his punishment assessed at five years in the penitentiary.

I.

The instructions as well on the part of the State as on the part of the defendant, presented the law of the case very fairly to the jury. No point appears to be made in this court in reference to the instructions.

II.

The defendant was not cross-examined by the prosecntlgg attorney, consequently the position of the .defendant’s counsel respecting a matter not found in the record,, will not be discussed.

III.

Evidence was admissible to show that the defendant was engaged in a prior difficulty in Matthews’ saloon, with a stranger on the same evening, that the felonious assault in question was committed; and this for the purpose of showing that defendant knew the official character of Bass, thereby showing the aggravated character of the assault subsequently made upon him. Defendant in his examination in chief denied that he knew that Bass was a policeman, or that he saw his star. The testimony was, therefore, competent as contradicting that of the defendant-in this important particular, and thus affording a basis for assessing a heavier punishment. At any rate the admission of the testimony ought not to reverse the judgment, because the testimony of the defendant’s guilt is otherwise so clear that we cannot say that he was prejudiced thereby. State v. Jennings, 18 Mo. 435" court="Mo." date_filed="1853-07-15" href="https://app.midpage.ai/document/state-v-jennings-7999136?utm_source=webapp" opinion_id="7999136">18 Mo. 435; State v. Patterson, 73 Mo. 695" court="Mo." date_filed="1881-04-15" href="https://app.midpage.ai/document/state-v-patterson-8006822?utm_source=webapp" opinion_id="8006822">73 Mo. 695.

IY.

Nor do we discover any ground for reversing the judgment b.ecause of the concluding remarks of the prosecuting attorney. If every random or hasty remark of such an official, made in the heat of debate, is to be tortured into a reason for reversing a judgment of conviction, few such judgments would stand, and few punishments be inflicted. Besides, the prosecuting attorney in telling the jury that if “you find the defendant not guilty we have no appeal, and your verdict ends the case so far as the State is concerned,” was simply telling the jury the truth; what each juror doubtless knew before the statement was made. Has it come to this, that the truth is to be assigned for error in this court ?

And the prosecuting attorney simply stated the law when he told the jury that “ if you find him guilty and cannot agree as to the term of punishment you ougfht to inflict, you can return into court this general verdict of guilty, and his honor, the judge, will fix the punishment.” R. S. 1879, § 1930; Fooxe v. State, 7 Mo. 502" court="Mo." date_filed="1842-05-15" href="https://app.midpage.ai/document/fooxe-v-state-6610711?utm_source=webapp" opinion_id="6610711">7 Mo. 502.

By returning a general verdict of guilty, it will be presumed, nothing to the contrary appearing, that the jury failed to agree on the punishment to be inflicted, and so, under the statute, left the quantum of that to the court.

Therefore, judgment affirmed.

All concur; Henry, J., in the result.