The grand jury of St. Louis county preferred an indictment against the defendants, charging that at said county, on September 1, 1903, defendants made a felonious assault on William A. Trent, with a deadly weapon, with the felonious intent to kill him, said Trent. Defendants entered a plea of not guilty and were put upon trial, which resulted in a verdict finding them guilty of common assault. Judgment and sentence followed the verdict, from which, after an unsuccessful motion for new trial, defendants appealed.
Trent, it appears, had left the county and was not present at the trial.
William Moriscbe, the principal witness for the State, testified that he owned Morische’s Grove, in St. Louis county, located near the grounds' of the Delmar Jockey Club, and at the time of the difficulty Trent was his cook; that on September 1, 1903, at about 3 p. m., he and Trent started to the Jockey Club, walking on the track of the Suburban Railway Company; that when they got in back of the paddock of the Jockey Club, Stuart and Vollmer, addressing them, said: “Here comes the sons of bitches now, don’t you follow us,” and Trent said: “We ain’t following you and we ain’t sons of bitches either.” With that Stuart pulled a gun out of his pocket and came towards Trent. Witness stated that he then ran about forty or fifty feet, dropped his hat and started back for it and saw Stuart and Trent
The physicians who attended Trent said his injuries were flesh wounds, not of a serious nature.
George Merida testified for the State, that he saw the three men fighting and roll into the ditch, but could not tell one from the other; that one of them had a gun in his hands.
George Angelin also testified, that he heard there was trouble and Avent to the scene; that when he arrived two of the men were rolling into the ditch and the other was standing by; that he saw nothing further of the fight until some men pulled Trent out of the ditch and he .then suav that Trent Avas cut and bruised about the face and was bleeding; that he saw nothing of the fight until the shot was fired.
For the defense, the evidence tends to show that Trent Avas about tAventy-five or six years of age, was a large, strong, muscular man and that Stuart was weak and sickly; that in the fight Stuart was backing and Trent was following him up and the two finally rolled into a ditch; that Vollmer was some distance aAvay but came up after Stuart and Trent rolled into the ditch and then- pulled Trent off of Stuart, but did not strike Trent; that no shot was fired until after the men rolled
At the close of all the evidence, the defendants offered an instruction in the nature of a demurrer to the evidence. The refusal of the court to grant this instruction is assigned as error. It is the well-settled rule in this State, that the weight of evidence in a criminal, as well as in a civil cause is for the jury and when there is any substantial evidence of defendant’s guilt, an instruction in the nature of a demurrer to the evidence should not be given. [State v. Warner, 74 Mo. 83; State v. Pollard, 174 Mo. 607, 74 S. W. 969; State v. Forrester, 63 Mo. App. 530.]
Defendants’ counsel contends, with great force and zeal, that there is no substantial evidence that Vollmer took any part in the fight, other than as a peacemaker, and seize up the following excerpt from M'orische’s testimony on cross-examination as conclusive of this fact, to-wit: “Q. And what did you notice Vollmer do when he came up where they were, what were his actions? A. He beat Trent to get him loose.” This evidence should be considered along with the other evidence of the witness. In his direct examination he was asked the following questions: “When you turned and looked back both of them (referring to Stuart and Vollmer) were up there? A. They were both fighting in the middle of the Suburban right of way and both fought right into the ditch. Q. You mean the two defendants with Trent? A. Yes, sir.” Witness further testified that Vollmer had something in his hands that looked like a pistol. Now, it may be that Vollmer was forced to strike Trent with the pistol or some other weapon to get him off of Stuart to prevent him (Trent) from
It is contended that the verdict is the result of passion and prejudice. There is nothing in the record to convince us that the verdict is other than the result of the cool and dispassionate judgment of the jury. The case was fairly tried and the issues were fairly and intelligently submitted by the instructions given. It appears to us that the verdict was reached by reason of the fact that the jury gave the greater weight to the evidence of the witnesses for the State.
Discovering no reversible error in the record, the judgment is affirmed.