State v. Musick

• Decision Date: 16 June 1890
• Parties: The State v. Musick, Appellant
• Court: Missouri Supreme Court

14 S.W. 212

101 Mo. 260

The State v. Musick, Appellant

Supreme Court of Missouri

June 16, 1890

Appeal from Moniteau Circuit Court. -- Hon. E. L. Edwards, Judge.

Affirmed.

James E. Hazell for appellant.

(1) Under the evidence, an instruction should have been given by the court for fine and imprisonment in county jail. (2) The court should instruct the jury that the law makes no presumption under the evidence, and that the intention of defendant in shooting is a matter of fact to be found by the jury. (3) The court, under the evidence, should not have given the instruction: "That, if the jury believe, from the evidence, that the defendant aimed at a vital part of the body of A. J. Smith, the law presumes defendant intended to kill A. J. Smith." (4) The defendant had a right, which he could not waive, to be present during the impaneling of the jury. His absence during the examination and discharge of Smith, and examination and acceptance of Wieneke, was properly shown by affidavits filed with his motion for new trial. (5) The court made remarks to counsel for defendant that had a strong and natural tendency to bias the minds of the jury to the favor of the state and to the prejudice of the defendant. Under the evidence in the case, the court should have instructed the jury upon assaults punishable under sections 1263 and 1265, Revised Statutes, 1879. State v. Murphy, 14 Mo.App. 73. And it is the duty of the trial court to give necessary instructions for the proper determination of the case as warranted by the evidence, whether asked to do so or not. State v Palmer, 88 Mo. 568. And, where the trial court fails to instruct upon all the phases of the case presented by the defendant's testimony, the cause should be remanded. State v. Banks, 73 Mo. 592. The third instruction given by the court at the instance of the state, should have been refused. There was no evidence in the case authorizing it, and, if there had been evidence fully supporting it, the court would have erred in thus stating the law. State v Stewart, 29 Mo. 419; State v. Foley, 12 Mo.App. 431; State v. McDonald, 67 Mo. 16; State v. Painter, 67 Mo. 84; Wharton Crim. Ev. [8 Ed.] secs. 736 and 764; 5 Crim. Law Mag. 912. (6) The ninth instruction asked by the defendant, defining intent as a question of fact to be proven, should have been given. State v. Stewart, 29 Mo. 419; State v. Foley, 12 Mo.App. 431; State v. South, 4 Dutch. (N. J.) 28; 2 Starkie on Ev. 739; Burke v. State, 71 Ala. (7) The court should have granted a new trial because defendant was absent from the court room during the impaneling of the jury. State v. Smith, 90 Mo. 37; Hopt v. People, 110 U.S. 574; Ralls v. State, 52 Miss. 396.

John M. Wood, Attorney General, for the State.

The eighth instruction was properly refused because not predicated on any evidence in the case. "The use of a deadly weapon, in a manner likely to produce death, makes a prima facie case of intent to kill. No effort was made to overcome this prima facie case, except by showing that the defendant acted in self-defense." State v. Schloss, 93 Mo. 361; State v. Jones, 86 Mo. 623. The court in its instructions, both on the part of the state and on the part of the defendant, had told the jury that before they would be warranted in finding defendant guilty, they must find that he made the assault with the intent to kill, and there was no occasion for the giving of the ninth instruction asked by defendant, and no error was committed in refusing it. The eighth allegation in the motion for a new trial -- that all of the instructions were not delivered to the jury when they retired -- is not supported by the evidence, or any evidence. The motion does not prove itself. State v. Daniel, 94 Mo. 301. The remarks of counsel, objected to, were warranted by the evidence, and were strictly within the bounds of legitimate argument. They constitute no ground for a reversal. State v. Emory, 79 Mo. 461; State v. Zumbunson, 86 Mo. 111; State v. Griffin, 87 Mo. 608; State v. Hoffman, 78 Mo. 256; State v. Stark, 72 Mo. 37; State v. Hoffer, 71 Mo. 433. It is impossible to see how the remark of the trial judge in passing on defendant's objections could have prejudiced the defendant; and it is a well-established principle of the criminal law that errors which do not tend to the prejudice of the substantial rights of defendants will not justify a reversal. State v. Holme, 54 Mo. 160; State v. Grate, 68 Mo. 22. The motion for a new trial on the ground of newly-discovered evidence is not supported by affidavit, does not state what efforts were made to discover the evidence in time, and it does not appear that the evidence is material. State v. McLaughlin, 27 Mo. 111; State v. Ray, 53 Mo. 345; State v. Fritterer, 65 Mo. 422. The record shows that defendant was present when the jury were examined on their voir dire, and when the list of the panel qualified was delivered to his attorneys. He should have made timely objections to the juror Smith being excused and the juror Wieneke substituted in his place (as alleged in his affidavit), if there had been any ground for his complaint in this behalf. It is too late to raise this objection for the first time in the motion for a new trial. R. S. 1879, sec. 1921; State v. Ward, 74 Mo. 253; State v. Ramsey, 82 Mo. 133; State v. Lett, 85 Mo. 52; State v. McDonald, 85 Mo. 539, and cases cited; State v. Rockett, 87 Mo. 669; State v. Reed, 89 Mo. 168; State v. Burk, 89 Mo. 635. The defendant was not entitled as a matter of right to withdraw his motion for a new trial already filed, and to file another in lieu thereof. If he could file such additional motion at all, it is only when in the discretion of the trial judge he is allowed to do so. But even if he was entitled as a matter of right to withdraw his first motion, and file a new one, no error was committed in this case by refusing to allow defendant to file his last motion, for the reason that no new grounds for a new trial are alleged in said motion.

OPINION

Sherwood, J.

-- Indicted under the provisions of section 1262, Revised Statutes, 1879, for an assault with malice aforethought, the defendant on being tried was convicted, his punishment assessed at four years in the penitentiary and judgment accordingly, hence his appeal.

The testimony for the state was substantially as follows: The defendant called at the store of P. R. Burnett, at Wolfe's Point, in Moniteau county, Missouri, late in the evening of July 25, 1887, just as he (Burnett) was closing up, and inquired for the "blacksmith." The blacksmith was A. J. Smith, the prosecuting witness and injured party, who was engaged in the business of blacksmithing at that place. Burnett told him he was over home, but he would be along pretty soon. Defendant said "he had been telling lies on him and he had to take it back, or he would put a hole through him." He walked behind the counter and commenced looking in the showcase, and by this time Smith stepped into the door. As soon as defendant saw him he said: "Old man, you have been telling lies on me, and have to take them back." Smith said: "Louis" or "Bud, what's the matter? Explain your self." Defendant then pulled out his revolver, came out from behind the counter and advanced two or three steps toward Smith and shot him, the bullet taking effect in and breaking his right arm. Before defendant shot, Burnett who was standing between the two men, attempted to prevent defendant from shooting, but was compelled by the latter to stand aside. He then pointed the pistol at Smith's breast and attempted to shoot him again, but it snapped; and when he could not make the pistol fire he commenced striking him over the head with it. Smith then seized him and pushed him over down behind the counter and held him until he promised he would let him alone if he would let him up. Smith let him up and went back to the house. There had been no previous difficulty between the parties, and nothing had been, or was, said or done by Smith to provoke the difficulty at the time.

The defendant testified in his own behalf that he was in the store at Wolfe's Point and Smith came there. "When he came in the store I said, 'Look here, I understand you have been telling lies on me.' He said, 'Explain yourself, sir.' I told him then that I understood he had been telling it around that I had told him that I had seduced a certain girl, I told him that was all a lie and I would like to get him to straighten it up. He run at me and said, 'You little son of a bitch, I will break your neck.' He run at me and I shot him."

He further testified that Smith struck him on the right shoulder, bruising it considerably, and that this was about the time he shot him; that he aimed to shoot him about the shoulder, and that he shot without any intention of killing him; did not attempt to shoot him a second time; and that he shot him because he was not able to stand up and fight him. It was also shown that defendant was physically weak; that one of his legs had so perished away that it was of little use; and that his reputation was excellent as a peaceable citizen.

At the instance of the state the court gave these instructions:

"1. If the jury believe from the evidence that the defendant Lewis Y. Musick, at the county of Moniteau, at any time within three years next before the finding of the indictment feloniously, on purpose and of his malice aforethought, did shoot at Andrew J. Smith, with intent to kill the said Smith, the jury will find the defendant guilty and assess the punishment at imprisonment in the penitentiary not less than two years and not exceeding ten years.

"2. The court instructs the jury that the words on purpose as used in these instructions mean intentionally, not accidentally. The...