175 Mo. App. 262 | Mo. Ct. App. | 1913
Lead Opinion
The defendant, appellant here, was proceeded against before a justice of the peace on information filed by the prosecuting attorney of Montgomery county, the information based upon an affidavit by Claude R. Ball. The information charges that on or about the 8th of July, 1910, at, etc., the defendant “did then and there unlawfully and willfully
As is our duty to do in all criminal causes, we have read the abstract of the record here with very great care. There was some conflict in the testimony but merely on minor matters. The essential facts are practically uncontradicted — we may even say that they ' are conceded. It appears that on the night of the 8th of July, 1910, a passenger train of the Wabash Railroad Company stopped at the station at Montgomery City to let off and take on passengers. There were quite a number of people gathered at the station when the train stopped and the defendant, who was a brakeman 'on the train, was standing in front of the platform of one of the passenger coaches assisting passengers to alight from and board the train. After the passengers aboard who desired to alight had done so, defendant called out several times, “All aboard.” “Tickets.” “Show your tickets.” It is in evidence that under the rules of the railroad company passengers boarding the train were, required to procure tickets and show them to the brakeman or person in charge before entering the coaches and that a notice to this effect wa,s posted in the station. Mr. Claude R. Ball was with a party of several ladies and possibly a man or two, some of the ladies intending to take the. train for Jonesburg. Among the ladies was an old lady referred to in the testimony as “Aunt Til Foreman,”
This is a very brief but accurate summary of the essential facts in the case. The case was submitted to the jury on instructions, of which this is a sample: That if the jury found from the evidence that the
At the close of the testimony for the State and again at the close of all the testimony in the case, defendant interposed demurrers to the evidence which were overruled and exception duly saved.
This information is founded upon section 4484, Re ■ vised Statutes 1909; is an information for a common assault. Section 4484 provides: “Any person who shall assault or beat or wound another, under such circumstances as not to constitute any other offense herein defined, shall, upon conviction, be punished by a fine not exceeding $100, or imprisonment in the county jail not exceeding six months, or by both such fine and imprisonment. ’ ’ This section is one of the sections in chapter 36, article 4, which article relates to offenses against the lives and persons of individuals.
Our court, speaking through Judge Lewis, in State v. McDonald, 7 Mo. App. 510, has very clearly defined the issue which must be presented and determined in prosecutions under this law. The judgment of the lower court was reversed in that case because, as was found by our court, the learned trial judge who had heard the case, had correctly stated the general
The defendant was in the lawful discharge of his duty; in the discharge of that duty he was assaulted by Mr. Ball, without cause or provocation of any kind whatever. A fight ensued between the two. The defendant had no deadly weapons in his possession; so far as the testimony shows, was unarmed, was a much smaller and younger man than his assailant* weighing about a hundred and thirty-six pounds while Mr. Ball weighed a hundred and ninety:five pounds. In the midst of a fight brought on by Mr. Ball himself, the defendant used the only weapon he had, if it may be called a weapon, that is his lantern, which was hanging over his arm, and struck Mr. Ball over the head with it. As to whether he used more than reasonable force under the circumstances is not in evidence. The mere fact that his blow cut into the scalp does not prove this. The question in the case- — the crucial question in the
The judgment of the circuit court is reversed and the cause remanded with directions to discharge the defendant.
Dissenting Opinion
DISSENTING OPINION.
I dissent from the opinion of the court, for the reason, as I view the facts, the question is one for the jury. The issue in the case pertained to the matter as to whether or not more force than was necessary was employed in repelling the assault of the prosecuting witness, Ball. It appears the prosecuting witness commenced the assault, it is true, but in so doing he employed no weapon and, indeed, only laid his hand on defendant by taking hold of the lapel of his coat and thrusting him out of the way. Upon this appearing, as it does, it is obvious the defendant was justified in exercising force against the assault of Ball. However this may be, the case proceeds on the theory that more force was employed than was necessary in repelling this assault. It is conceded that Ball neither revealed nor used a weapon on defendant but it appears defendant employed a weapon — that is, a railroad lantern — in pounding him over the head. That he used considerable force in pounding Ball’s head with a heavy railroad lantern is entirely clear, for large quantities of blood flowed freely from the wound thereon and the physician who attended Ball immediately thereafter describes a deep gash through the scalp to the skull. On this evidence. I entertain no doubt whatever that the question in decision was one