64 Mo. App. 413 | Mo. Ct. App. | 1896
The defendant was charged and convicted of an assault and battery, and his punishment assessed at a fine of $50 and imprisonment in the county jail for thirty days. He has appealed the case to this court, and complains of the action of the trial court in rejecting evidence offered by him, and that the evidence is not sufficient to sustain the judgment.
The evidence for the state tended to prove that the defendant was a policeman, and that at the time charged in the information he, without a just cause, assaulted and beat Frank Kilcullin, the -prosecuting witness. The defendant admitted the battery, but attempted to justify his action on the ground that Kilcullin was at the time guilty of a breach of the peace, that he attempted to arrest him therefor, and that he resisted arrest, whereupon defendant struck him with a “billy.” The evidence for the defense was to the effect that just prior to the difficulty, which occurred about midnight, Kilcullin and five or six companions were under the influence of liquor, and were creating a disturbance at the corner of Division and Eighteenth streets by kicking against the doors of a saloon and by discharging firearms; that the defendant came up and ordered the crowd to go home, when Kilcullin answered that he would go when he got ready, and that he struck the defendant with his fist when the latter undertook to put him under arrest, and that thereupon the defendant struck him as alleged. After the defendant had testified to the foregoing facts, the following questions were asked him, which the court refused to allow him to answer, to which the defendant excepted and still excepts:
Q. “What was the character of that gang with Kilcullin there that night?”
Q. “Is not that corner, where the trouble occurred, frequented by rough characters, and is not the neighborhood there a very bad one?”
Q. “Have you not warned that gang of boys, with whom Kilcullin was with that night, away from that corner, and warned them from assembling there?”
Finding no error in the record, the judgment of the court of criminal correction will be affirmed.