108 Mo. 166 | Mo. | 1891
Defendants, who are father and son, were indicted at the August term, 1887, of the circuit court of Cape Girardeau county, under section 1262, Revised Statutes, 1879, for a felonious assault with a pistol on. one. William Walls, the son Robert being, charged as principal, and Hermann, the father, with being present, aiding and abetting his son in the commission of the offense. The defendants were convicted and each sentenced to pay a fine of $100, and the case is before us on appeal.
Hermann Noeninger was the owner of a saloon, and his son Robert was his bar-keeper.. On the evening of August 7, 1887, the prosecuting witness, Wm. Walls, and several others went into the saloon and were drinking when an altercation arose between Walls and defendant, Hermann Noeninger, who thereupon ordered Walls to leave the house, which he did not do. The evidence on the part of the state tends to prove that defendant Robert at the time of the altercation was behind the bar, while his father and Walls were in the room outside of the bar. A few words passed between
Defendants’ version of this affair is that Walls and others were making a great deal of noise in the saloon and that defendant, Hermann Noeninger, requested them several times to keep quiet, and finally told them if they did not do so they would have to get out; that Walls, who seemed to be the leader, refused to go, and became defiant, and with an open knife in his hand stepped towards defendant, Hermann Noeninger, who was backing away from him towards the open end of the counter; that as he was retreating from Walls he called to his son, who was behind the bar, to hand him the revolver, but that the son, instead of so doing, picked up the revolver and fired over Walls’ head, the ball entering the west wall of the room about nine feet from the floor.
The court in its instructions defined the offense with which defendants were charged and told the jury what facts it was necessary to find in order to convict them under sections 1262 and 1263, Revised Statutes, 1879, and authorized an acquittal on the ground of self-defense.
I.. The third instruction given by the court in substance told the jury that while defendants had the right to order Walls to leave the saloon and to employ such reasonable force as was necessary to eject him, yet they were not authorized to use a deadly weapon to accomplish this object, and that if the shot was fired as a means ■of ejecting Walls and not in the necessary defense of their persons from the infliction of great bodily harm then impending at the hands of Walls, they should convict defendants. The specific objection to this instruction
The instructions must all be read and considered together, and by another instruction the jury was directed to find Hermann Noeninger guilty if they found he was-present, commanding, procuring, advising or inciting the commission of the offense by his son. There can be-no doubt, from the evidence in the case, that Hermann Noeninger was the principal instigator of, and actor in, the offense. The evidence on the part of the state directly shows that he called to his son to shoot, and he himself says that he called to his son to hand him the pistol, but instead of doing that the son got the pistol and fired himself. The jury could not have misconstrued the instructions. Indeed, the object of the shooting was better known to Hermann than Robert, the latter being behind the bar, and the former being the active participant in the altercation, and upon whom, if anyone, Walls was about to inflict personal injury.
II. The court committed no error in instructing the jury that, “ while the defendants are competent witnesses-in their own behalf, yet in determining the credibility of their testimony the jury may take into consideration their interest in the result of this suit.”
III. The defendant, Hermann Noeninger, objects that the court refused to instruct the jury that they could not convict him, unless they found that there was a common purpose of himself and son to commit the crime. This ruling of the court was right. The court-authorized the jury to convict Hermann Noeninger on the theory alone that he commanded, advised, procured or incited his son to shoot, and this is the theory on. which he was convicted. Hermann was a principal, and
IV. The defendant, Robert Noeninger, testified that he did not aim to shoot Walls, but shot over his head for the purpose of frightening him, and defendants now insist' that the court erred in not instructing- the jury to acquit them if the shot was not fired at Walls, but over his head. We do not think this position is tenable. In the first place the court told the jury that if the defendant, Robert Noeninger, intentionally and in malice shot at Walls they would convict. The jury was also told that if they had reasonable doubt of the defendants’ guilt they should acqnit. In order to convict, therefore, the jury m'ust have found that the defendant, Robert, intentionally shot at Walls, and thus negatived-the assertion that he shot over Walls’ head. State v. Turlington, 102 Mo. 642; State v. Henson, 106 Mo. 66. The instruction covered that question in the case. In the second place the defendant asked no instruction on this point, and he did not assign the failure of the court to instruct on it as a reason why a new trial should be granted, and hence the objection comes too late. State v. Reed, 89 Mo. 168; State v. Burk, 89 Mo. 635; State v. McDonald, 85 Mo. 539; State v. Mitchell, 98 Mo. 657; State v. Emory, 79 Mo. 461; State v. Preston, 77 Mo. 294; State v. Burnett, 81 Mo. 119; State v. Mann, 83 Mo. 589.
The fact that the very able attorney engaged in this case never thought of this alleged error, until he reached this court, raises a strong presumption that the instruction given by the court was well understood by him, and was not calculated to mislead and did not mislead the jury.
V. The court committed no error in refusing to permit defendant to show that abo at five minutes after the shot was fired and after Walls had gone out of the saloon, Walls had a knife in his hand. The fact that he had a knife at such a time, after he had been shot
Complaint is also made that the court refused to permit the defendants to prove what Walls said five minutes after the pistol was fired, and after Walls had left the saloon. This was not error. What was then said by Walls was not a part of the res gestee, and, therefore, inadmissible. The defendants could have got Walls’ conversation in evidence to impeach him by laying the proper foundation. This they did not do. Besides that, the record does not - show that Walls said anything. The question was asked of the witness if he had any conversation with Walls, and on objection by the state the court refused to permit him to answer, and it does not appear that there was any conversation or if there was, what it was.
Finding no error in the record the .judgment is affirmed.