Uрon ah information filed by the prosecntiong attorney of Christian county, the defendant was, at the February term, 1906, of the circuit court of said county, convicted of a felonious assault upon one William Bilyeu, and his punishment fixed at two years in the penitentiary. After filing motions for a new trial and in arrest of judgment, which were overruled, defendаnt appealed.
The State’s evidence tended to prove that bad feeling had been existing between the defendant and the prosecuting witness, William Bilyeu, due to the fact that Bilyeu and others had been using a road or pass-way said to have been across a portion of defendant’s land. Some of the witnesses claimed that this was a public road, and others thought that the same was on defendant’s ground, but all admitted that the ground and roadway were uninclosed and used by the public as a pаssway. Some days prior to the date of the commission of the alleged offense, the defendant stated to one Proctor that he wanted Bilyeu to keep' off of his, defendant’s, premises, and that if he didn’t he would cut his liver out. To one Spradley, the defendant stated that if he ever caught Bilyeu down there again he “aimed to paralyze him;” this was some two weeks before the difficulty. The State’s evidence tended to prove that Bilyeu, on Sunday morning, April 91, 1905; was going to church and passing along this road оn horseback. He met defendant walking .towards him, in company with a woman whom he afterwards recognized as defendant’s first wife. Wien only a short distance from Bilyeu, the defendant threw two rocks at him; the first rock missed him, and the second rock struck Bilyen on the hand. Defendant then ran up with a knife in his hand and cut Bilyeu on the arm and hand. Bilyeu was holding his bridle reins in his hand and the bridle reins and gloves, which were offered in evidence, were also cut in one or two places. Defendant, after strik
The defendant’s evidenсe tended to show that he met Bilyeu on the roadway which crosses defendant’s land, and that defendant was walking in company with his first wife, who was then going to defendant’s house to wait on his children. The evidence further tended to show that defendant’s present wife was concealed close by and was watching; that Bilyeu threw rocks at defendant and threatened defendant; that one' of the
In rebuttal, the State proved that defendant’s first wife, who was a witness for defendant, stated to Mrs. Anderson that she was not noticing the defendant at the time the difficulty commenced between him and Bilyeu ; that she was talking to someone else and did not know how the fight started. Bilyeu also denied making any threats against the defendant, or making any effort to induce his second wife to leave him.
Defendant is not represented in this court; but in thе motion for a new trial several grounds are assigned therefor, but only such as seem meritorious will be noticed. The first of these is the action of the court in requiring the defеndant to plead to the information and to be placed on trial without first having appointed some attorney at law to represent Mm in the trial of the causе.
Section 2560, Revised Statutes 1899, provides: “If any person about to be arraigned upon an indictment for a felony be without counsel to conduct Ms de
It will be noticed from this statute that three things are necessary to be found by the trial court before appointing or assigning counsel for a defendant charged with felony: first, that the defendant is without counsel; second, that he is unable to employ counsel; third, that the defendant has requested that counsel be appointed for him. This record does not show that defendant requested the court to appoint counsel for him, but it does disclose that the court found that he was able to employ counsel. Defendant being able to employ counsel, it was not the duty of the court to appoint counsel for him, even though he had requested it. Besidеs, his failure to make such a request was a waiver of this statutory right. In the case of State v. DeSerrant,
An attorney appointed by the court to defend a person charged by indictment or information with a felony renders his services without any compensation therefor, and it is only when the defendant is unable to employ counsel, and makes the necessary request, that it becomes the duty of the court to assign him counsel. It wоuld manifestly be an injustice to require an attor
The instructions seem to cover every phase of the case, and appear very fair to-the defendant; nor did the court commit error in failing to instruct upon any lower offense than the one charged, because there was no evidеnce upon which to predicate such an instruction. [State v. Harris,
The verdict was well warranted by the evidence, and, finding-no reversible error in the record, the judgment is affirmed.