194 Mo. 452 | Mo. | 1906
This prosecution was commenced in the circuit court of the city of St. Louis, at the February
The defendant was convicted of felonious wounding, and his punishment assessed at a fine of one hundred dollars. In due form he appealed to this court.
The evidence on the part of the State tended to prove that the defendant is a conductor on a street car in St. Louis, and the prosecuting witness is a. negro man. On July 17, 1903, between six and seven o’clock in the evening, defendant was in charge of an electric car go - ing along Gratiot street near Seventeenth street, when he got into a misunderstanding with one James Ladell, on the rear platform of his car; in the scuffle, the defendant’s cap was knocked off and fell to the ground, and Ladell jumped off of the car, and ran towards the cap and picked it up to get the number; the defendant got a pistol from another passenger on the car and followed Ladell and fired four shots at him. Ladell testified he dropped defendant’s cap at the first shot, and that the defendant fired at him three times after that as he ran down the street; all of the shots missed Ladell, but one of them took effect in the body of Peters, the prosecuting witness herein. The bullet pierced the right breast and was taken out of the back of the shoul'der. At the time of the shooting, Peters was standing near the curb stone, and had gone out of his boardinghouse on the street in order to hear the trouble that was then in progress between defendant and Ladell, when a large number of negroes were drawn to the street by reason of the firing of the pistol.
The court instructed on assault to kill with malice aforethought, and defined the terms willfully, on pur
The court also instructed on self-defense, the presumption of innocence, reasonable doubt, and the credibility of the witnesses.
I. To reverse the judgment the defendant assigns three grounds of error. It is first insisted that the court should have directed a verdict of acquittal under the evidence. The basis of this contention is that the negro Ladell brought on the difficulty and assaulted the conductor who was in the discharge of his duty, and when the defendant had ejected Ladell from the car and the latter began to throw rocks at the conductor, the conductor had the right to take the pistol from sheriff Hoog and pursue Ladell to recover defendant’s cap, and to shoot at Ladell or at any other person who was engaged
II. It is urged that the court committed error in giving the instruction to the jnry upon felonious wounding as set forth in the foregoing statement. It is insisted that if the State’s witness.es are to be believed, the defendant was guilty of a felonious assault with intent to kill, and if the testimony of the defendant’s witnesses is true, the defendant was entirely justified, and therefore there was no testimony upon which to predicate an instruction for felonious wounding. On the other hand, the position of the State is that if the jury believed the State’s evidence, the defendant was clearly guilty of discharging a loaded pistol into an unoffending crowd of people on the street, and recklessly wounding Peters who was a mere looker-on; that even though the defendant was guilty of an assault with intent to kill, he is in no position to complain of the instruction and verdict for felonious wounding.
Section 2369’, Revised Statutes 1899, provides: “Upon indictment for any offense consisting of different degrees, as prescribed by this law, the jury may find the accused not guilty of the offense charged in the indictment, and may find him guilty of any degree of such offense inferior, to that charged in the indictment, or of an attempt to commit such an offense, or any degree thereof; and any person found guilty of murder in the second degree, or of any degree of manslaughter, shall be punished according to the verdict of the jury, although the evidence in the case shows him to be guilty of a higher degree of homicide. ’ ’ And section 2370 pro
That there was sufficient evidence- to justify a conviction for felonious wounding by the culpable negligence of the defendant in recklessly firing a loaded re-. volver in a public street, in which a large number of persons had congregated, there can be no doubt whatever; and the indictment in the case not only alleges an assault, but it alleges the wounding of Abraham Peters with a leaden ball out of the pistol so shot off as aforesaid by the defendant. That the offense of maiming, wounding or disfiguring another by the culpable negligence of a defendant is a less offense than an assault on purpose and of malice aforethought with intent to kill, maim or disfigure such person, which is a greater offense than that defined in section 1849, there can be no doubt. An assault on purpose and of malice aforethought with intent to kill, maim or disfigure, under section 1847, is punishable by imprisonment not exceeding ten years, whereas, felonious wounding, under section 1849, is punishable by imprisonment in the penitentiary not exceeding five years, and may be scaled down to a fine of one hundred dollars, as in this case.
We think the court properly instructed on felonious wounding under the indictment and the evidence in the case, and that the defendant has no cause to complain because the evidence in fact tended to show he was guilty of a larger offense, that of an assault with intent to'kill under section 1847.
III. There was no error in failing to instruct the jury by the court of its own motion of the right of the defendant to pursue one who had the possession of his cap. No such instruction was requested of the court, nor was the court’s attention called to the failure to instruct specially on said subject.
Moreover, the defendant did not testify that he believed that Ladell was trying to steal his cap, or that it
We discover no reversible error in the record, and the judgment of the circuit court must he and is affirmed.