| Mo. | Nov 17, 1903
The defendant in this case was charged with a felonious assault made upon one Joe Broyles, on the 24th day of December, 1901, in Wright county, Missouri.
The evidence tends to show that the defendant, the prosecuting witness and a number of other persons had congregated at the Nation schoolhouse in Wright county, on the evening before Christmas, for the purpose of attending literary exercises being conducted there, and for the purpose of observing the distribution of presents from a Christmas tree. The defendant and those with whom he came, and who remained at the entertainment after he left, were somewhat under the
The evidence on behalf of the State tends to show that as soon as the prosecuting witness stepped outside the door where the defendant and his friend Phillips then were, the defendant, without provocation or excuse •of any kind, began striking the prosecuting witness with a knife, inflicting some wounds on the body of the prosecuting witness, which bled profusely. The testimony on behalf of the defendant tends to show that when the prosecuting witness came out of the house he reached in his pocket and drew forth a knife and assaulted the defendant, and that thereupon the defendant drew his own knife, and that whatever injuries he inflicted upon the prosecuting witness he inflicted in the necessary and proper defense of his person. It is further shown on behalf of defendant that the prosecuting witness had a pistol in his pocket at the time, but there is no evidence tending to show that the prosecuting witness removed the pistol from his pocket, during the difficulty; one witness states that Broyles drew his pisto] partly out of his pocket, as he started out of the •door. The defendant was not wounded, notwithstanding the'violent assault which he says the prosecuting witness made upon him.
Upon the testimony, as introduced, the court frilly instructed the jury, and they returned a verdict of
The appellant in this cause has failed to file in this court any statement, brief or assignment of errors, suggestive of any errors committed by the trial court; hence, we are left to an examination of the record to ascertain what was done in the disposition of this cause. We have given the record a careful examination, and find that the testimony detailing this difficulty, which resulted in the wounding of the prosecuting witness at a Christmas tree entertainment, is no exception to the general rule — it is conflicting. The State introduced tiie prosecuting witness, together with a number of other witnesses, whose testimony fully supported the charge contained in the information; on the other hand, the defendant was introduced, and a number of other witnesses, whose evidence fully supports the defense made in this cause — that of necessary self-defense.
Upon an examination of the testimony, as detailed by the witnesses, it is apparent that the evidence preponderates on the part of-the State; however that may be, this court will not undertake to settle the conflict. It was amply sufficient to support the verdict, and it was the province of the jury, who had the witnesses all before them, to pass upon their credibility, and the weight to be attached to their testimony.
The information charging the offense is in due form and fully accords with the approved precedents-by this court. •
At the close of the evidence, the court fully and fairly presented the case to the jury by instructions which are in harmony with the rules announced by this court as applicable to cases of this character.
The defendant, by his counsel, at the close of the evidence, asked the court to give the following instruction: “Although you may believe from the evidence that John Phillips and Andy Thornhill, or either of
It will be observed that the court, in the qualification to instruction No. 1, given in this cause, substantially directed the jury, as requested in this refused instruction. The jury were told, in that qualification:“If, however, defendant and such other person or persons were not acting together with a common purpose to take the life of Broyles or do him some great bodily harm and with the intent to assist each other in accomplishing such purpose, then defendant would not be responsible for the acts of such other person or persons even though they may have also cut and stabbed Broyles at the same time that defendant did so.”
The proposition contended for in the refused instruction was fully covered in instruction No. 1. Hence, there was no necessity to repeat, substantially, the same declaration. The action of the court in refusing said instruction was proper, and is fully supported by the authority, which is so well understood that it is unnecessary to cite it.
Numerous objections and exceptions are preserved to the admission and rejection of testimony in this cause.
The appellant, in his motion for new trial, has designated, with particularity, some of the errors complained of in this respect. Doubtless, these are regarded as the most serious, and we will treat them in their order. The motion asserts as reasons for a new trial, among others, the following: “Because the
The record discloses that during -the progress of the trial, and at the appropriate time, the witnesses were questioned as to. the clothes. They were identified; their condition in every minute particular was inquired about, and the only error complained of is the actual exhibition of the clothes to the jury, after the State had closed its case. This clearly was a matter in the discretion of the court. While, perhaps, it would be more in harmony with regularity to have introduced them in chief when the witnesses were testifying about them, we are unable to conclude that the presentation of them, as was done in this case, operated any injury to the' appellant.
Our attention is next directed to the complaint in the motion for new trial, in the fourth clause, where it is said: “Because the court erred in permitting the witness, Phillips, to testify as to him, Phillips, talking to one of the State’s witnesses about leaving the country to the prejudice of this defendant.” The record in this «cause shows that Phillips was introduced as a witness for the defendant. The testimony on the part of the State connects him directly with this difficulty. Doubtless this objection has reference to the cross-examination of Phillips, in which the State sought to show that Phillips undertook to have the State’s witness, Peter Helsley, avoid appearing to testify as a witness relative to this difficulty. The jury had the right to know, not only the relation of this witness to the case, but also his interest in the cause, and as indicating his feeling, anxiety and interest in the cause, the inquiry was per
It is next urged that the admission of testimony all through the trial, as to what Phillips (who is not on trial), did, was error. We are unable to see how this constitutes error, or how the court, in the trial of this defendant, could separate and divide the details of one transaction. Everything that was done at the time of the difficulty, including who did it and what they said, constitutes a part of the res gestae and under the undisputed rules of evidence, was competent, and the action of the trial court in admitting all the details connected with this alleged assault was appropriate and correct.
Upon examination of this entire record in this cause, we find no substantial merit to the objections and exceptions preserved by the appellant.
We have carefully read the testimony upon which this verdict is based, and find that it fully supports the conclusions of the jury. The instructions fully presented every phase of this case, warranted by the testimony. The defendant had a fair and impartial trial, before a jury of the county in which the offense is charged to have been committed, and we decline to interfere with their finding.
The judgment will be affirmed.