258 Mo. 225 | Mo. | 1914
Convicted of the crime of assault with intent to kill, as denounced by section 4481, Eevised Statutes 1909, defendant appeals from a judgment fixing his punishment at five years in the penitentiary.
The information, which is legally sufficient, charges that defendant, with malice aforethought, shot at, with intent to kill, one Walter Abbott, on May 21, 1912.
For several years prior to the commission of the alleged offense the defendant resided on a farm near Pearl station in Greene county, Missouri. During that time Walter Abbott, the prosecuting witness, resided on an adjoining* farm owned by one W. E. Watson. More than a year before the assault a strong personal dislike sprang up between defendant and Abbott. About August, 1911, Abbott disturbed the peace of defendant by cursing and calling him vile names. For that offense Abbott was prosecuted and fined. The fining of Abbott did not satisfy defendant, who seems to have wanted personal revenge. He (defendant) made numerous threats that he would settle with Abbott. Two days before the assault defendant admits that he voluntarily insulted and cursed Abbott at Pearl station, but it appears that the presence of defendant’s brother, Frank Hyder, averted
“Defendant said, ‘I give your baby a talking to the other day.’ I says, ‘Who was that?’ he says, ‘Walter Abbott.’ I says, ‘He is no baby of mine, he is able to take care of himself.’ He says, ‘He didn’t do it the other day;’ he says, ‘I called him everything I could think of, all the names I could think of, and he took it; he didn’t take care of himself.’ I says, ‘I wish you hadn’t stirred that up.’ He says, ‘You are harboring him under you; God damn you, you get rid of him and don’t be long about it.’ I says, ‘I am not harboring him; he is a gentleman, and he is trying to .make a living for his family.’ He says, ‘He is not a gentleman, he is a God damn s — of-a-b—, and the man that harbors him is no better than he is.’ He says, ‘You get rid of him and don’t be long about it.’ I says, ‘I can’t get rid of him before the'first of September; he is going to leave then, but you wouldn’t be in any better shape then, for he says he is going to rent Fred Staley’s place.’ Hyder says, ‘No, he ain’t, we can’t live that close together, this county is not big enough for us both.’ I says, ‘He says he is.’ He says, ‘Now God damn you, you get rid of him and don’t be long about it.’ He says, ‘Do you remember what I told you last spring?’ I says, ‘What was that?’ He says, ‘You remember about him cussing me that time at the store, and I told you to tell him that if he didn’t get right down on his knees in the dirt to me and make his acknowledgment I was going to kill him.’ I says, ‘I told him, and he never done it, did he?’ He says, ‘No, but I will do it, though,’ He says, ‘This thing has got to be settled just as1 soon as the train comes into*229 Pearl; we can’t live together; God damn him, I am going to settle it as soon as the train gets into Pearl. ’ ’ ’
Charles Ross, who was on the train with defendant and Watson, corroborated Watson as to the threats made by defendant at that time.
On reaching Pearl station witness Watson went immediately to the home of Abbott and informed Abbott’s wife of the threats before detailed, whereupon Abbott’s wife communicated the threats to her husband, who was working'on the public road near-by. She also delivered to her husband a revolver.
Abbott was working with five other persons on a road-grader between Pearl and defendant’s house. After remaining at Pearl station about three-quarters of an hour and making inquiry as to where he could find Abbott, defendant walked down to where the latter was at work.
The testimony of the five persons who were working with Abbott, as well as Abbott himself, is that when defendant approached within about twenty steps of Abbott he drew a revolver and said: “Get ready, you---, I’ve come to kill you,” and shot at Abbott. The shot went wild, and thereupon Abbott drew" a revolver and shot defendant. The parties advanced towards each other and continued the shooting. When close enough, defendant knocked Abbott’s pistol out of his hand, and as defendant’s pistol would not fire any more, he threw it at Abbott. Defendant finally fell and Abbott struck him several times on the head with a rock, and then voluntarily discontinued the fight. Abbott was not struck by any of the shots fired by defendant, but defendant was hit twice by Abbott’s shots and was confined to his bed a week or more as the result thereof. There was a slight variance between the witnesses for the State as to the remark made by defendant just before he began shooting at Abbott, but their evidence in substance is identical.
For reversal defendant asserts that competent evidence for defendant was excluded; improper evidence for the State admitted, and an improper instruction given on behalf of the State.
This form of instruction has been severely criticized 'by different members of this court in several cases. [State v. Cook, 84 Mo. l. c. 49; State v. Young, 99 Mo. l. c. 676; State v. Barrington, 198 Mo. l. c. 126.] Speaking for myself, I seriously doubt if it was the intention of the Legislature when it enacted section 5242, Revised Statutes 1909, to authorize courts to single out and direct the attention of juries to the evidence of such witnesses as the court may think are personally interested in the result of the trial — it sounds too much like singling out certain evidence for special comment. The instruction does not tell the jury how much discredit is cast upon- the evidence of defendant or his wife by the fact that they are interested in the result of the trial. To my mind the instruction is of little or no value to the State, for it would be a very unsophisticated jury, indeed, which would not intuitively know that the defendant and his wife would be prone to color their evidence in favor of the defense, while a witness possessing no interest would be likely to give a more fair and impartial narrative of the facts. 'A jury need not be treated like a primary class in a public school.
When the law itself has fixed a rule or guide for weighing evidence, it is not error for the court to tell
The interest or animus of any witness may be shown for the purpose of affecting his credibility (State v. Pruett, 144 Mo. 92, l. c. 94; State v. Horton, 247 Mo. 657); and when the testimony of an-interested witness comes into a case, the point may be covered by a general instruction telling the jury that if they find that any witness who has testified in the case is related to the parties, or otherwise interested in the result of the trial, the interest of any such witness may be taken into consideration in determining the weight to be given to his evidence.
The form of the instruction complained of has been approved by a majority of the members of this court many times. [State v. Maguire, 69 Mo. 197; State v. Zorn, 71 Mo. 415; State v. Cooper, 71 Mo. 436; State v. Sanders, 76 Mo. 35; State v. McGinnis, 76 Mo. 326; State v. Cook, 84 Mo. 40; State v. Miller, 93 Mo. 263; State v. Young, 99 Mo. 666; State v. Brown, 104 Mo. 365; State v. Morrison, 104 Mo. 638; State v. Young, 105 Mo. 634; State v. Mounce, 106 Mo. 226; State v. Ihrig, 106 Mo. 267; State v. Noeninger, 108 Mo. 166; State v. Turner, 110 Mo. 196; State v. Wells, 111 Mo. 533; State v. Renfrow, 111 Mo. 589; State v. Maguire, 113 Mo. 670; State v. Pratt, 121 Mo. 566; State v. Taylor, 134 Mo. 109; State v. Bryant, 134 Mo. 246; State v. Napper, 141 Mo. 401; State v. Summar, 143 Mo. 220; State v. Miller, 159 Mo. 113; State v.
Other points are urged by defendant, but we do not consider them of sufficient moment to merit special mention.
The evidence of defendant’s guilt is so overwhelming that we do not think the giving of the instruction complained of, if error at all, was sufficiently prejudicial to work a reversal. He had a fair trial, was represented by able counsel, and the judgment will be affirmed. It is so ordered.'