255 Mo. 281 | Mo. | 1914
Upon a charge of assaulting with intent to kill one Paris Craighead, defendant was convicted in the circuit court of Callaway county and appeals from a judgment fixing his punishment at three years in the penitentiary.
The evidence upon which this conviction rests runs as follows:
Craighead and three other white boys assembled in Callaway county on the night of August 18, 1912, to attend a dance. The dance did not materialize, so the four boys decided to attend a festival, held on the same night at a negro church a few miles distant. They arrived at the church about midnight, and, after tying their horses, sought to purchase some soda pop and fish at a stand outside the church. They could not obtain the soda pop and fish, the supply being exhausted.
The white boys then walked to an open window of the church and were watching the negroes inside,
Several persons came out of the church and demanded that the white boys pay for the broken window. This they declined to do, claiming they had not broken it. Some one or more of the negroes then told the white boys to leave, which they promptly did. There is some conflict in the evidence as to who told the white boys to leave; two witnesses testified that defendant gave the order.
Defendant was standing on the outside of the church when the bottle was thrown. Two of the white boys stated that the negroes told them to run, and they did run to their horses and prepared to .go home.
Paris Craighead did not run, but walked to his horse. According to his testimony about seven of the negroes followed him, and, as he was preparing to mount his horse, a negro by the name of Wheeler Dudley struck him in the back with a knife, inflicting a wound extending from his shoulder to his belt — about seventeen inches long. Craighead stated that just before this assault was made defendant said to Dudley, “Rip him.”
Defendant, testifying in his own behalf, corroborated the statements of Craighead at all points except in regard to the inciting remark, “Rip him,” alleged to have been made by defendant to Dudley just before the crime was committed. Defendant stated that he and Pete Holland were standing about five feet from defendant when Wheeler Dudley passed between them and cut Craighead with a knife. Defendant further testified that it was a starlight night and that after the assault took place he could see that Craighead’s coat and shirt were “split open,” and defendant thought he was wounded. Craighead was in fact very
Pete Holland’s evidence was about the same as defendant’s. He testified that he did not hear anyone say “rip Mm” — but that after the assault Dudley stated he had “split the white boy’s coat.”
One Julia Dudley testified in rebuttal that the day following the assault defendant called at her home, and upon loaning her his knife to pare an apple, he (defendant) remarked: “That is the knife with which I cut the white boy’s coat.” Defendant denied making this remark, as did one other witness who was present when it is alleged to have been made.
For reversal defendant assigns the alleged invalidity of the information; the giving of improper instructions; the admission of improper evidence; and insufficiency of evidence to support the verdict.
OPINION.
The bill of exceptions contains a call for the instructions given on behalf of the State, but from some cause those instructions were not copied into the transcript. No suggestion of diminution of record or attempt to amend the bill of exceptions by an order of court nunc pro tunc has been made; but since the submission of the ease to this court, the clerk of the circuit court of Callaway county has filed here, without permission, some copies of instructions which he certifies were found deposited among the original papers in this cause. The clerk further certifies that said instructions, of which he has thus furnished us copies, are not indorsed as either given or refused by the trial court. It has long been the rule that a record filed in this court cannot be amended by the mere certificates of the clerk when not acting under the order of any court. [Smith v. Railroad, 91 Mo. 58, l. c. 61; Althoff v. Transit Co., 204 Mo. 166.]
As Craighead, tbe prosecuting witness upon whose evidence the conviction is based, admitted tbat be bad only a slight acquaintance with defendant, and was not familiar with bis voice, tbe difficulty arises in finding tbat said prosecuting witness, by only such light as tbe stars afforded on tbat summer night, could be certain as to which one of tbe seven negroes then present made tbe inciting remark, “Rip him.”
Tbe defendant, who was only five feet from tbe prosecuting witness, testified tbat after Dudley struck the blow, be (defendant) could see tbat Craighead’s coat and shirt were “split open;” so tbat, defendant being able to observe by tbe starlight tbat Craighead’s coat and shirt were cut by Dudley’s knife, it is apparent tbat it was at least possible for Craighead to recognize defendant by sight, and with reasonable accuracy determine tbat it was be who told Dudley to use tbe knife.
After a careful consideration of all tbe facts we are convinced tbat Craighead’s ability to recognize defendant as tbe man who incited Dudley to make tbe assault was a question for tbe jury, and we decline to disturb their decision.
Tbe judgment is therefore affirmed.