177 Mo. 659 | Mo. | 1903
Under an information lodged with the clerk of the circuit court of Moniteau county by the prosecuting attorney of the said county, under his official oath, charging that the defendant Ella Kyle, in and upon one Bert Christian, unlawfully and feloniously, on purpose and of her malice aforethought, did make an assault, and that said Ella Kyle, with a razor the nose of the said Bert Christian and the eye of the said Bert Christian, on purpose and of her malice aforethought, then and there unlawfully and feloniously did cut and slit, with intent, her, the said Bert Christian, then and there to maim and disfigure — defendant Kyle was convicted and her punishment fixed at two years’ imprisonment in the penitentiary.
After unavailing motions for new trial, and in arrest, sbe was duly sentenced in accordance with the verdict, and from this judgment she appealed.
The salient facts are about as follows:
Bert Christian and the defendant Kyle are both negroes, and at the time of the difficulty out of which this prosecution arose, resided in California, Missouri. At that time the defendant owned a vacant house in that town, near which Bert Christian lived. Temple W. B. F. Lodge had rented the house to hold a, festival in, and for that purpose Bert Christian had loaned the lodge her tableware, lamps, table, etc. The festival was held, but the articles loaned were not removed for sev
At the close of the evidence defendant prayed the court to declare the law to be that under the information and the evidence the defendant could not be convicted and the jury should acquit, which the court declined to do and she duly excepted.
The court then, over the objection of defendant, gave the jury a number of instructions with respect to the law and evidence of the case, of which that numbered one is as follows:
“The court instructs the jury that if they believe from the evidence that the defendant, Ella Kyle, on the 30th day of September, 1901, in the county of Moniteau and State of Missouri, unlawfully, feloniously, on purpose and with malice aforethought assaulted Bert Christian with a razor, and on purpose and with malice aforethought, unlawfully and feloniously, then and there did cut the nose and put out the eye of the said*663 Bert Christian, with intent thereby to maim and disfigure the said Bert Christian, as charged in the information, then the jury will find the defendant guilty and assess her punishment at imprisonment in the penitentiary for a period of not less .than two years or more than twenty-five years. ’ ’
It is insisted by defendant that certain remarks made by the attorney representing the State while addressing the jury were improper, and prejudicial to her rights and, although objected to at the time, no ruling was made by the court with respect thereto. But no. such point was made in the motion for new trial, hence it is not the subject of review on this appeal. [State v. Gilmore, 110 Mo. 1; State v. Alred, 115 Mo. 471, and authorities cited.]
It is said for defendant that the court erred in permitting the State, over her objection, to ask her on her cross-examination as a witness where she got the razor with which she cut Bert Christian. The defendant had not testified to anything which justified such an inquiry unless it was the fact that she testified, in answer to a question propounded to her by her own attorney, that she had another difficulty with the prosecuting witness about a week before the night she cut her, and this we think did not do so. It must therefore follow that, as the defendant had not testified that she cut the prosecuting witness with a razor, it was improper to ask where she got the razor, with which she did the cutting. [Sec. 2637, R. S. 1899; State v. Hathhorn, 166 Mo. 229, and authorities cited.] But the defendant having admitted that she did cut Bert Christian with a razor, it was immaterial where she got it, and the judgment should not be reversed'upon that ground, for it seems impossible that she could have been prejudiced by such evidence.
It is claimed by defendant that the information is invalid for the reason that it charges that the nose and eye of Bert Christian were cut and slit, and that in
The words, “or slit,’’ as used in the statute have no reference whatever to the eye, but apply solely to the nose and lips. Therefore, in so far as the eye is concerned, the information.is unquestionably bad; but with respect to this offense, all averments may be regarded as surplusage and the information held good as to the nose which it does substantially allege in the language of the statute that defendant did cut and slit.
But instruction numbered one, given by the court, is clearly erroneous, because it submitted to the jury the question as to whether defendant did put out the eye of said Bert Christian, when there is no such averment in the information, hence, no such issue before the jury.
It is too well settled for discussion that an instruction in a criminal case can be no broader than the allegations in the indictment or information. Nor can a material defect in such an instrument be supplied by an instruction. Our Bill of Rights forbids such a result.
The demurrer to the evidence should have been given. We express no opinion upon other instructions in the case.