168 Mo. 432 | Mo. | 1902
— At the September term, 1899, of the circuit court of St. Charles county, the defendant was indicted for a felonious assault upon Zachary Woods. . The indictment contained three counts, the first for a felonious assault with malice aforethought; the second, a felonious assault with intent to kill said Woods; the third, for a felonious assault and wounding of said Woods whereby his life was endangered. Defendant was arraigned and entered his plea of not guilty.
At the March term, 1900, of said court, the defendant was put on his trial and convicted on the second count and his punishment assessed at imprisonment in the penitentiary for two years and six months. His motion for a new trial was sustained on the ground of the admission of illegal evidence and the cause continued.
The cause was finally heard on April 29, 1900, at the March adjourned term of said court, and the defendant was again convicted of a felonious assault with intent to kill said Woods, as charged in the second count of said indictment and his punishment assessed at two years in the penitentiary, and
The prosecuting witness Woods and defendant Moore were owners of adjoining farms some three miles from Wentzville in St. Charles county at the time of the alleged assault. A few days prior .to the difficulty out of which this prosecution ai*ose, Woods was notified to put in the posts for a hog fence between him and defendant.
On March 25, 1899, defendant was not on his premises when Woods went to set the stakes for the fence, and the latter designated the line by setting the stakes and told defendant’s son to show his father the line when he returned. Woods and his nephew, Ben Walker, then rode out on the public road in the direction of Wentzville and soon met defendant, also horseback, coming from Wentzville and riding west in the direction of his home. When they met they checked their horses and accosted each other in a friendly way. Woods then said to defendant, that he had put some stakes up and had told defendant’s son to show him how the fence would run, and asked him if he wanted the line to run with Foster’s and defendant answered “Yes,” and according to defendant’s evidence, he said he didn’t care for a few feet of land. The three then started on, Woods and Walker proceeding north, and defendant west, and just as they did so Woods called upon young Walker 'to witness that defendant said he was willing for his line to run with Foster’s. Upon hearing this defendant turned his horse about and rode up between Woods and Walker. As to what occurred then there is a conflict between the witnesses. Woods says defendant rode up to him, and said, “You want to tear loose or cut loose from me, you d — n son of a bitch!” To which Woods instantly replied, “You are a d — n liar,” and defendant came at him with his right hand in his coat pocket, and Woods reached over and grabbed defendant’s right hand to prevent the drawing of his pistol, and the lunging of the horses dragged Woods off of his,
J. H. Dyer, who was in no way related to either party, rode up just as the war of words began. He testified that as he came in hearing distance he heard Moore, the defendant, say to Woods, “You are a g — d—n son of a bitch,” and saw. Woods grab him and defendant attempt to push Woods off with his left hand, when he called to them, “Men don’t do that,” and Woods hung on to Moore, and in the turn of the horses Woods fell on the ground and defendant’s horse started west, when defendant jumped off of him, and came back with his pistol in his hands, and Woods attempted to keep him from shooting him. Woods had nothing in his hands. Defendant shot Woods three times.
Per contra, defendant testifying in his own behalf, gives the following account of the meeting between himself and Woods.
When they met they each greeted the other in a friendly way and stopped their horses and Woods, addressing defend
There was evidence from witnesses both for defendant and the State to the effect that he had some blood on his cheek when seen about an hour later on the road to Wentzville and at Wentzville, those for the State saying it was a scratch and did not hare the appearance of an abrasion that 'would have likely been made with a stone. There was much evidence as to defendant’s subsequent statements as to his shooting Woods, and that his only regret was he shot himself in the encounter.
The instructions are such as have often been approved by this court, and only two of them are challenged, and it is
I. The court instructed the jury that they would only consider the charge in the second count; the two other counts were withdrawn from their consideration. Instructions one and two are as follows:
“1. The defendant is charged in the second count of the indictment with the crime of assault with intent to kill without malice, and this is the only matter for your determination, the other two counts being withdrawn from your consideration. And you are further instructed that the indictment preferring this charge against defendant is no evidence whatever of his guilt; it is simply an accusation or charge, and no juror should suffer himself to be influenced in the slightest degree by the fact that this indictment has been returned against the defendant.
“Malice as above used means the intentional doing of a wrongful act without just cause or excuse.”
“2. The court instructs the jury that, if you find from the evidence in the ease that the defendant at the county of St. Charles and State of Missouri, on or about March 25, 1899, on purpose and intentionally, made an assault on one Zachary Woods with a loaded pistol, and shot him, with the intent to kill him, the said Woods, and not under such circumstances as to justify him on the grounds of self-defense as explained in other instructions, then you will find the defendant guilty of an assault with intent to kill, as charged, and assess his punishment at imprisonment in the penitentiary for a term of not less than two years, nor more than five years, or in the county jail not less than six months, or by both a fine of not less than one hundred dollars and imprisonment in the county jail not less than three months, or at a fine of not less than one hundred dollars.”
The court then gave a full and exceedingly favorable instruction on the right of self-defense.,, The contention of de
We are at a loss to grasp the strength of this objection. It is plain, we think, that the court by its first instruction advised and directed the jury that malice was not an element of the charge against defendant, and then told them what malice signified as used in the instruction, and that it was not necessary for them to find that the shooting was with malice and that defendant was not on trial for that offense; and then the court confined itself in the second instruction to the one charge left in the indictment, to-wit, an assault with intent to kill, and the jury responded to that charge only. No attempt was made to prove any other offense and there is no- ground for holding the instructions to be contradictory.
II. It is urged that reversible error was committed in receiving the testimony of Ben Walker, the nephew of Zachary Woods, to the effect that just previous to the difficulty in which defendant shot Woods, the witness saw a man coming along the lane from the house of Woods to the public road. As learned counsel say, there was nothing in the testimony to show that it was defendant, and the witness said he couldn’t tell, at the distance he was from the man, who it was. It would seem that it was a wholly irrelevant fact, but it did not touch defendant, and there is no ground for presuming that the jury drew an inference first, that it was defendant, and sec
Certainly the judgment will not be reversed on such aground.
III. The error alleged as to the refusal of the court to' permit defendant to prove the frequency of the visits of Woods to defendant, is without basis either in law or fact. The question was merely, “When before that had you been at his-house?” referring to the testimony of Woods that a few days prior to the shooting he was passing through defendant’s premises, and defendant had called him to look at his hogs, which-he had done. To the question Woods answered, “I don’t know.”
The court ruled that he could answer generally but it was not necessary to enter into details. As counsel was not satisfied with this ruling, the court sustained an objection to1 any specific visits.
Certainly, if counsel desired to ask the general question of the witness as to his feeling towards defendant prior to the shooting, whether friendly or unfriendly, it would have been-competent, but no such offer was made, but on the contrary the court had of its own motion indicated he would permit such a-question, and it was declined. But as the State expressly waived the question, it was no error to confine counsel to the-offense charged in the second count. Moreover, the fact that Woods might have made frequent friendly visits to defendant would have shown the good feeling of Woods, not of defendant, which latter seems to have been the purpose of the question.
There was no error in any view we take of the matter.
IV. Complaint is also made that the court refused to-permit witness Orr to testify as to the condition of defendant’s clothing, as to whether it was torn or not on the day of and' after the difficulty.
The difficulty occurred on the morning of the twenty-fifth day of March, between nine and ten o’clock. This witness-
But the same question was propounded to witness Anselm, as to the condition of defendant’s shirt about an hour after the shooting, and it also was excluded, and exception was saved. The court excluded it on the ground that the testimony showed defendant had ridden off unaccompanied by any one, and to permit a defendant after an hour to prove a disarrangement of his own clothing as a circumstance in his favor would be self-serving statement, and excluded it. Defendant’s counsel urge that as the condition of the clothing of deceased is admissible in homicide cases, no reason can be seen why it should not be competent for defendant in a case like this. That the clothing worn by the deceased at the time of homicide is evidence, when first identified as that worn when the homicide occurred, for the purpose of indicating the instrument by which and the part of the body on which the wound was inflicted or the direction of the flow of blood and the bloodstains thereon, is now well settled in this State, but in such cases a preliminary requisite is the identification of the garment as one worn by deceased at the time. In this case the witness was asked to state the condition of defendant’s shirt collar when witness saw defendant in Wentzville, a point three miles or more distant from the place of homicide and at least an hour after the difficulty and after defendant had been to his home, without any proof that the shirt worn by defendant at the time was the same worn by him during the difficulty. It seems to us for this reason alone the evidence was properly rejected. It should at least have been identified as the same
As the evidence was properly excluded, it is unnecessary to determine its admissibility in a proper case. It is obvious that its exclusion, in the very nature of the case, affords no reason for reversing the judgment in a case in which no other error was committed, even if it was error.
Y. Finally, it is assigned as a ground for reversal that the court refused to strike out the answer of witness Walker as to the general reputation of defendant, because after testifying that he knew the general reputation of witness for good morals, he was asked what it was, and he answered, “I don’t consider it good.” The point is made that he should have answered that it was good or bad.
The witness was not asked what he thought of defendant’s character, but what his reputation was, and it must be held to have been that he didn’t consider, from what the neighbors generally said, that it was good. No other reasonable conclusion can be drawn than that he meant that it was not good, and here again we must remark that after so many others had sworn defendant’s reputation was bad, this answer, if construed as defendant interprets it, is no ground for reversal. The defendant had a fair trial. Two juries have pronounced him guilty, and the evidence abundantly justifies the verdict.
The judgment is affirmed.