263 Mo. 339 | Mo. | 1915
Appellant was charged in an information in two counts: the first, a felonious assault ; and, second, exhibiting a pistol in a rude, angry and threatening manner. Upon a trial he was convicted under the second count, which was drawn upon section 4496, Revised Statutes 1909, sentenced to two years’ imprisonment in the penitentiary, appealed to this court, gave the required bail bond, and was granted a supersedeas.
Appellant urges as grounds for reversal (1) the refusal of his application for continuance;- (2) errors
To further illustrate the fact that it is the unlawful use of the weapon under the conditions named in the statute, which constitutes the offense, it is held in another jurisdiction that if the weapon is within-the class against which the prohibition is directed, although
The application for a continuance also alleged that if present the witness would testify as to appellant’s unsound mental condition prior to the offense and the causes thereof.
The testimony as to appellant’s mental condition at the time of the commission of the offense did not depend for its relevancy or probative force on the causes which may have brought it about. Great latitude is.allowed in proving the mental condition of an accused when irresponsibility for the act charged is interposed as a defense. But appellant’s mental condition at the time of the commission of the offense was the material matter to be proved, and not the cause of his insanity or the time when he became insane (State v. Porter, 213 Mo. 43, 57; State v. Hays, 22 La. Ann.
The appellant, armed with a loaded pistol, sought the presence of the prosecuting witness to collect a debt. That they engaged in a wordy wrangle he admits, and alleges error in the trial court’s refusal to permit him to prove that the prosecuting witness said in reply to a demand for the money claimed by appellant to be due him: “You” (appellant) “are a young man and don’t need it; I ain an old man and do need it.” This statement if admitted would have constituted no defense to the charge preferred against the appellant, and the contention in that regard is to our mind as spun gossamer.
The appellant contends that the court committed error in not permitting his mother to testify concerning the effect upon appellant of a drug called “habitina.” As we have before stated generally in regard to
The witness, Dr. Troutman, who was an expert, was permitted later to testify generally as to the effect of the drug named, upon the human system; if, therefore, error had been committed in the exclusion of the testimony of lay witnesses on this subject, it was not only rectified but strengthened by the testimony of an expert and no substantial injustice was done to appellant. In all of this excluded testimony in regard to the appellant’s mental condition, none of the witnesses were asked to testify as to their knowledge of the general character and conduct of the appellant upon which to base the conclusions they were asked to render. This manner of introducing testimony in regard to this particular subject is improper, and only facts should have been introduced in evidence which would have a tendency to show the manner in which the mind of the appellant was affected. The inquiries made by counsel for the appellant simply called for the opinions of lay witnesses without any preliminary or explanatory testimony as to the facts within their knowledge which would support such conclusions. This was error. [Choice v. State, 31 Ga. 424.]
Upon the whole we do not find any error either in the admission or exclusion of testimony to justify a reversal of this case.
It was not necessary to prove that the pistol was a dangerous and deadly weapon. Proof that it possessed the appearance and characteristics of a pistol, which defendant not only admitted it to be, but that it was loaded, authorized the jury to classify it as a “firearm,” which is expressly declared in the statute to be a deadly weapon; its display, therefore, as such within the meaning of the statute (Sec. 4496; supra) constituted the offense and it was not material whether
Tbe instruction is not objectionable in that it assumes the truth of an issuable fact as contended by the appellant. If this were true it would render the instruction erroneous. [State v. Miller, 111 Mo. l. c. 551. J What the instruction does do is to tell the jury, when read in connection with the other instructions, wbat constitutes insanity as a defense to crime, or when limited to its own terms what does not constitute such insanity. This is not error, as numerous authorities attest. In Lynch v. Comm., 177 Pa. St. 205, the court thus declared the law: “But the jury must not confound anger or wrath with actual insanity, because however absurdly or unreasonably a man may act when exceedingly angry, either with or without cause, if his reason is not actually dethroned it is no legal excuse for the violation of the law.” In Guetig v. State (66 Ind. 94, 32 Am. Rep. 99), the court gave an instruction approved on appeal, that “Frenzy arising solely from the passions of anger and jealousy, no matter how furious, is not insanity. ’ ’ In Willis v. People, 32 N. Y. 715, the court instructed the jury that an irritable temper and an excitable disposition of mind did not constitute insanity. In Comm. v. Parkin (Penn.), 2 Pars. 439, 2 Clark, 208, the court declared
The rule announced in the above instruction was learnedly reviewed by Wagner, J., in State v. Hundley, 46 Mo. 414, with the result that an instruction similar in all of its material features was held to have been properly given. A like instruction was approved in State v. Miller, 93 Mo. l. c. 275. It might be urged that the instruction should not have been given in the instant case because of the paucity of testimony as to the appellant’s insanity. The testimony in this regard was confined almost wholly to vague statements of lay witnesses as to their conclusion in regard to appel
V. 'Appellant contends that the verdict as returned was fatally defective in omitting therefrom the words “exhibiting a pistol in a rude, angry and threatening manner.” If the record sustained this contention, which it does not, and the error complained of had been properly preserved for our consideration, we' would be required to consider the correctness of the verdict in this form: “We the jury find the defendant Ferd Morris guilty of exhibiting a pistol as charged in the second count, and assess his punishment at two years in the penitentiary.” In State v. Chumley, 67 Mo. l. c. 45, where felonious assault was charged, the jury returned a verdict finding defendant “guilty on .the second count in the manner and form as therein set forth,” and assessed the punishment at a fine and imprisonment. At the suggestion of the prosecuting attorney the verdict was modified in form when returned into court, by the insertion of the words “with intent to kill” after the word “guilty” and before the word “on,” and this court held that the words inserted did not prejudice the accused under the rule that if a verdict be informal or improper the court may put it in proper form, in the presence of the jury, and if they assent to it, there will be no error. [Kreibohm v. Yancey, 154 Mo. 67.] In the case at bar it is contended that the words claimed to have been omitted were inserted by the court upon the jury returning the verdict, and was unauthorized. If the error complained of had been properly preserved, it is devoid of merit. The modification went simply to the form of the verdict, which was sufficient to support a judgment as rendered, and appellant was not thereby prejudiced.
YT. The trial court did not err in refusing to require the State to elect upon which count it would stand at the close of the evidence.'