225 Mo. 488 | Mo. | 1910
At the February term, 1909', of the circuit court of Christian county, upon an information charging him with having made a felonious assault upon one Barney Gregory, with intent to hill him, the defendant was found guilty of said offense, and his punishment assessed by the jury at two years in'the penitentiary. In due time motions for new trial and in arrest of judgment were filed. The motion in arrest was overruled, but while the bill of exceptions recites that the motion for new trial was overruled, the record does not show that there was any order overruling the same. Defendant was sentenced upon the verdict, and appealed to this court.
The evidence for the State was, in substance, as follows:
On the night of November 2, 1908, a political “rally” was held in a skating rink in the town of Billings, in Christian county. Defendant and the prosecuting witness, Gregory, attended said “rally,’’.both at the time being somewhat under the influence of intoxicants. They exchanged “hurrahs” for their respective candidates, each making use of remarks derogatory to the other’s political favorite. The meeting being over, they repaired to the sidewalk in front of the skating rink, where words of anger passed between them. The defendant shoved Gregory away from him, whereupon Gregory struck the defendant. The latter then struck Gregory with a knife, and Gregory again struck defendant with his fist. Both men fell, Keener on top, but in the scuffle Gregory wriggled from under Keener and got on top. Defendant put his arm around Gregory, and was seen to stab him several times with a knife held in his right hand. After the combatants were pulled apart, defendant was heard to say, “Let me to him — I will fix him yet.” Gregory was taken to a physician, who dressed his wounds. The physician testified that Gregory had received seven knife wounds, one of which was dangerous, and that he was bleeding
In his own behalf, defendant testified that he tried to avoid trouble with Gregory, and that the latter struck the first blow; that Gregory had a knife in his hand, and that he knocked it out of his hand in the exchange of blows; that Gregory drew from his pocket what defendant thought was a pair of knucks, and struck him therewith, breaking his left shoulder blade; that he fell and Gregory fell on top of him; that he, defendant, drew his knife, opened it with his teeth, and struck Gregory with his knife in order to protect himself, and that as soon as Gregory called for help, he stopped striking him with the knife.
Dr. J. P. Baird, by deposition, testified to the effect, that on November 4, 1908', he examined defendant, and found his collar bone broken, and a “bruise on top of the collar bone, appearing as if it had been done with a moderately blunt instrument;” that he found a contusion on defendant’s left cheek, and a knife wound, about five inches loug, in the left forearm, which wound was but skin deep, and that defendant at the time also complained of a bruise on the right side.
The evidence is quite conflicting, particularly as to which man was the aggressor, the evidence for the State being that the defendant struck the first blow, while that for defendant tended to show that Gregory began the fight.
Defendant filed a motion to quash the information, which motion was overruled by the court, the defendant duly excepting. Said motion assailed the information on two grounds, to-wit: (1) Because the information charged no offense under the laws of this State, and (2) because, according to the motion, no preliminary hearing had been accorded-the defendant.
The information, leaving off the formal parts, is as follows:
*494 “Fred W. Barrett, prosecuting attorney within and for the county of Christian, in the State of Missouri, informs the court, under his official oath and upon his best- information and belief, that Jesse F. Keener, on or about the second day of November, 1908, in the said county of Christian, in the State of Missouri, in and upon one Barney Gregory, feloniously, on purpose and of his malice aforethought, did make an assault, and then and there, on purpose and of his malice aforethought, feloniously assault, beat, wound and stab' him, the said Barney Gregory, with a large knife of the length of six inches, which was then and there a dangerous and deadly weapon likely to produce death and great bodily harm, which knife he, the said Jesse F-Keener, then and there had and held in his right hand, with intent then and there him, the said Barney Gregory, on purpose and of his malice aforethought, feloni-ously to kill and murder, contrary to the form of the statute,” etc.
The information charges the offense in the language of the statute, and the intent is plainly charged. Defendant, however, insists that the information is bad, and that his motion to quash should have been sustained, for the reason that the word “did” is omitted from the charging part of the information. The information reads: “Did make an assault, and then and there, on purpose and of his malice aforethought,” etc., and defendant maintains that the word “did” should have been placed between the words “and” and “then,” and that its omission renders the information defective.
In the case of State v. Barton, 142 Mo. 450, the charge in the indictment was in the exact language of the information in this case, and said indictment was held good. The auxiliary“ did, ” used in immediate connection with the charge of the assault, is carried, in meaning, by every rule of grammatical construction, into connection with the following clause, and thus
As to the second ground of the motion to quash, it goes to a mere irregularity in the previous proceedings. [State v. Pritchett, 219 Mo. l. c. 703.] This ground raises a question of fact, which did not prove itself. So far as the record shows, no affidavit was filed, nor was there any evidence offered to prove that the defendant was not accorded a preliminary hearing, as required by section 2476a, Laws of 1907, p. 243, and for this reason the second ground of the motion fails. Generally, the court’s discretion in overruling motions to quash will not be reviewed. [State v. Patterson, 159 Mo. l. c. 100; State v. Lucas, 147 Mo. l. c. 72.]
Instruction No. 10, for the State, is as follows:
“Gentlemen of the jury, the court instructs you that he who wilfully, that is, intentionally, uses upon another at some vital point, a weapon, to-wit, a knife, a deadly weapon, must, in the absence of qualifying facts, be presumed to know that the effect is. likely to be death, and knowing this must be presumed to intend death as the probable and ordinary consequences of such an act, and if such deadly weapon is used without just cause or provocation, he must be presumed to do it wickedly and from a bad heart.”
Defendant criticizes this instruction on the ground that it was for the jury to find from the evidence whether the knife used was a deadly weapon, and not for the court to declare as a matter of law.
The information was drawn under section 1847, Revised Statutes 1899, which provides: “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 force likely to produce death or great bodily harm, with in
‘They carried him in the office, and he was very muck exhausted, and he was bleeding from six wounds.*498 Pie bad seven, but one there wasn’t a great amount of blood coming from, but one that particularly drew our attention was one in tbe side that came in about one and tbree-fourtbs inches of tbe spinal column, and cut a rib into and penetrated tbe bowels. That is generally considered a dangerous wound. Then be bad a stab wound right behind and under bis shoulder that was bleeding profusely.
“Q. How deep'was that? A. To tbe bone.
“Q. Did that strike tbe shoulder blade? A. Yes-, sir, and then kinder bordered down; and be bad one just over the heart, about one and three-fourths inches. This wound went to tbe ribs and seemed to have been cut a little glancing, and cut down and then came out, cutting tbe muscular tissue down to the bone; and then there was three on his arm which were not very dangerous, and then bis two fingers were cut to tbe bone.”
In answer to tbe question whether or not tbe said wounds were dangerous and likely to produce death, tbe witness said: ' “Yes, sir, a wound is considered dangerous. This wound in tbe side would have killed him under conditions.”
In tbe light of this and other evidence herein-before stated, and in conformity to our views previously expressed, we must bold that tbe giving of said instruction numbered 10 was not error. It might also be said, in passing, that tbe language of tbe instruction in tbe Harris case, supra, was more general than in this, tbe words as to tbe weapon being “a deadly weapon of any kind,” while in tbe instruction in this case tbe weapon “a knife,” is specifically mentioned.
Tbe defendant contends that tbe court erred in refusing to give instructions “A” and “B,” asked by him. These instructions were merely as to tbe presumption of defendant’s innocence, and as to tbe information being a mere formal charge, and no evidence of defendant’s guilt. It is sufficient to say, in answer to tbe said contention of defendant, that tbe
It is insisted by defendant that “the court committed reversible error in compelling the defendant, over tbe objections of bis counsel, to testify to things on which he was not examined in his examination in chief,” and in confirmation of defendant’s statement in this regard he refers us to page 108 of the record. In that and succeeding pages the prosecuting attorney, on cross-examination, questions the defendant with respect to the result of an examination of his wounds, which examination had been made by a Mr. Wilson, in the jail, the morning after the fight, and also as to defendant’s conduct on that occasion. The defendant, in his direct examination, testified that one Abe Wil-' son, who in another place is called “Doctor,” visited him in the jail, examined his wounds, and gave him some liniment therefor, but that the examination given him was slight. “He just pulled down my shirt, and fingered around some, and said this wasn’t broken,” the reference doubtless being to the shoulder blade, which according to defendant’s testimony was broken. The prosecuting attorney, in cross-examining the defendant, asked him if he did not tell Wilson, while examining his wounds, that he was not hurt much, and the defendant answered, “I don’t think I did.” Then the question was asked if he, the defendant, did not walk on his hands and feet all over the floor at the time of his examination by said Wilson. To this question defendant’s counsel objected on the ground that “the matter was not gone into in the direct examination.” The court refused to sustain the objection, and told the prosecuting attorney to ask the question, to which action of the court defendant duly excepted. The defendant’s answer to said question was, “I don’t know—I was feeling mighty bad along about that time — it was a cold place in there.”
A further insistence is that the court erred in refusing to grant the' defendant a new trial on newly-discovered evidence. In support of this ground of his motion for new trial the defendant filed an affidavit as follows:
“Jesse P. Keener, being duly sworn, upon his oath says that since the trial of his ease in the circuit court, he learned of the evidence of William May den, who resides at Billings, Missouri; that he is informed, and believes, that he can prove by the said William May-den that the next morning, very early, he picked up ^o knives at the exact place of the fight with Barney*501 Gregory, and that he believes that he can prove that one of the knives is the- knife that belongs to Barney Gregory, the prosecuting witness, and the one that said Gregory cnt the defendant with on the night of the fight; that he had no knowledge of the facts known by the said William Mayden, and that he has used dne diligence in preparing for trial, and that had he known that Mayden was so material a witness he would have procured his evidence on the trial of said cause; that said Mayden’s evidence can be secured in support of his motion for a new trial, and defendant prays the court to give him time to procure the evidence of the said William Mayden in support of his motion for new trial.” This affidavit was signed and sworn to by the defendant. Counsel for defendant also filed an affidavit of about the same tenor, except that he intimates that he learned of this evidence before the conclusion of the trial; that he went immediately to the court and informed him of what Mayden would swear, “and asked the court that he be permitted to procure said Mayden’s evidence, and the court said he would see, and that was the last of the matter.” Accompanying said affidavit was one by the said Mayden, to this effect: that about daylight, the morning after the fight, he visited the scene thereof, and found and picked up two pocket-knives there; that afterwards Barney Gregory came to him and asked the affiant to give him his knife, but that he refused to do so; that he never told the defendant or his attorney that he found said knives but that he told the prosecutor of such fact, and that the prosecuting attorney did not subpoena him as a witness; that he, the affiant, was not related to any of the parties interested in the proceedings.
The frequently-announced rule of this court with respect to affidavits in support of a motion for a new trial on newly-discovered evidence is as follows: “The party must show, first, that the evidence has come to
It will be seen that the affidavit of the defendant falls short of showing that the evidence alluded to was so material.that it would probably produce a different result if the new trial were granted, o,r that the object of such testimony was not merely to impeach the character or credit of a witness.
Indeed, it is difficult- to see how such evidence, if introduced at the trial, could produce a different result. Exclusive of his own testimony, five witnesses testified for defendant at the trial, none of whom stated that the prosecuting witness had a knife in his hand at the time of the difficulty. These witnesses were all close by the combatants during the fight, and detailed all that occurred, and if the prosecuting witness had a knife in his hand it is beyond the bounds of probability that they could have missed seeing it, or, having seen it, have overlooked mentioning such fact while testifying for the defendant. There was an electric light near by, and there was nothing to prevent their seeing all that occurred. One of defendant’s said witnesses testified that he drew the combatants apart, and took from the defendant the knife he had used upon the prosecuting witness, and kept the same, but he did not mention or intimate that Gregory had a knife.
In view of such evidence, it can hardly be said that the newly-discovered evidence mentioned in the af
We have closely examined the record, and find no reversible error therein. The judgment should be, and is, affirmed.