The State v. Maguire

• Decision Date: 31 January 1893
• Parties: The State v. Maguire, Appellant
• Court: Missouri Supreme Court

21 S.W. 212

113 Mo. 670

The State v. Maguire, Appellant

Supreme Court of Missouri, Second Division

January 31, 1893

Appeal from St. Louis Criminal Court.--Hon. Jas. C. Normile, Judge.

Affirmed.

Chas T. Noland, Chas. P. Johnson and Thos. B. Harvey for appellant.

(1) The indictment should have been quashed. It only alleges that the would was given "with the pistol aforesaid." State v. Green, 111 Mo. 585; State v. Blan, 69 Mo. 317; State v. Burns, 99 Mo. 542, dissenting opinion of Judge Sherwood. (2) The court should not have singled out the testimony of the defendant and specially charged the jury upon its weight. Such was a prohibited trespass upon the exclusive province of the jury. Muely v. State, 19 S.W. 915; State v. Young, 99 Mo 666-676, the dissenting opinion of Judge Sherwood; Revised Statutes, sec. 4220. (3) The fact that defendant recently before the difficulty had lodged with the captain of police a report of misconduct of his subordinate officers,--the prosecuting witnesses--and the further fact that said officers had been informed before the difficulty of said report having been made against them by the defendant, are competent as proof of the animus or motive of the prosecuting witness, who, by defendant's plea of self-defense, is charged with being the aggressor in the fight. Proof of motive is always admissible. Wharton's Criminal Evidence [9 Ed.] sec. 784, and citations; 1 Bishop on Criminal Procedure [3 Ed.] secs. 1108, 1109; Stephens' Digest of Law of Evidence [Chase's Ed.] p. 13; Schemmer v State, 51 N. J. Law, 29; Hunter v. State, 11 Vroom. 495; People v. Shea, 8 Cal. 538; State v. Jackson, 95 Mo. 652; State v. Nugent, 71 Mo. 136; State v. Forsythe, 89 Mo. 667; State v. Mounce, 106 Mo. 226. (4) The evidence in the case demanded an instruction for assault to kill without malice. State v. Branstetter, 65 Mo. 149; State v. Banks, 73 Mo. 592; State v. Palmer, 88 Mo. 568; State v. Elliott, 98 Mo. 150; State v. Young, 99 Mo. 675; State v. Melton, 102 Mo. 683; State v. King, 111 Mo. 576; State v. Crabtree, 111 Mo. 136. And it was the duty of the court to instruct for the lower grade, although not requested to do so by the defendant. State v. Stonum, 62 Mo. 596; State v. Branstetter, supra.

John M. Wood, Attorney General, and Ashley C. Clover, Circuit Attorney, for the State.

(1) The indictment is sufficient. Though perhaps obnoxious to criticism from the standpoint of the rhetorician or grammarian, it cannot be said that the meaning is thereby rendered so obscure as not sufficiently to advise defendant of the crime with which he is charged. State v. Turlington, 102 Mo. 642; State v. Elvins, 101 Mo. 243. (2) The testimony offered through the witness McDonald was clearly incompetent, first, being a self-serving statement of the defendant, and, second, relating to an entirely different transaction from that in issue. It was not undertaken to show Walsh had made any previous threats against appellant, nor that any allusion to the complaint of appellant was made during the encounter in issue. (3) While it is obligatory upon the court to instruct the jury upon all questions of law arising in the case which are necessary for their information, it is not necessary to coax juries into verdicts by giving them an opportunity to compromise on a small punishment. In a prosecution under Revised Statutes, sec. 3489, where the evidence shows that the defendant either acted in self-defense or with malice aforethought, instruction should not be given for a lower grade of assault. State v. Robb, 90 Mo. 30. In this case the evidence on the part of the state showed that defendant stepped up to Walsh and shot him without the slightest provocation. The evidence on the part of the defense showed that Walsh had beaten defendant without the slightest provocation, was advancing upon him with uplifted club and saying "God damn you, I'll kill you!" when defendant, retreating, fired.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

Gantt, P. J.

The defendant was indicted at the January term, 1890, of the St. Louis criminal court for an assault with intent to kill, under section 3489 of the Revised Statutes of 1889. He was convicted and sentenced to imprisonment in the penitentiary for three years.

I. The first error complained of is the refusal to quash the indictment because it did not charge an offense, in that it failed to allege defendant shot the prosecuting witness with a pistol.

After the formal commencement the indictment charged that Edward Maguire in and upon one Philip Walsh, feloniously, wilfully, on purpose and of his malice aforethought did make an assault "and the said Edward Maguire with a certain weapon, to-wit, a pistol, loaded with gunpowder and leaden balls, then and there feloniously, wilfully, on purpose and of his malice aforethought, did shoot off, at, against and upon the said Philip Walsh, then and there giving to the said Philip Walsh, in and upon the body of him, the said Philip Walsh, with the pistol aforesaid, one wound, with the intent then and there him, the said Philip Walsh, feloniously, wilfully, on purpose and of his malice aforethought, to kill, contrary to the statute," etc.

The indictment is sufficient. It sufficiently shows an assault and wounding with a loaded pistol, which was shot off by defendant at the officer, Walsh, with the malicious purpose of killing him.

II. The defendant assigns as error the refusal to permit him to prove by one Edward J. McDonald, a turnkey in the police department, that a few days previous to the shooting, defendant had complained to him against the officers Walsh and Cox, neither of whom were present at the time. There was no error in excluding these self-serving statements of the defendant. One is not permitted to make testimony for himself in this manner. Moreover it related to an entirely different transaction from that in issue. There is not a word of evidence showing that any one referred to this complaint during the encounter in which defendant shot Walsh. State v. Musick, 101 Mo. 260, 14 S.W. 212.

III. The court gave a correct instruction on the right of the jury to judge of the credibility of witnesses and concluded it by this instruction: "The defendant is a competent witness in his own behalf but the fact that he is a witness testifying in his own behalf and the interest he has at stake in this cause, may be considered by the jury in determining the credibility of his testimony." This instruction has been repeatedly approved in this court. State v. Young, 105 Mo. 634, 16 S.W. 408: State v. Cook, 84 Mo. 40.

IV. The evidence on the part of the state tended to prove that Philip Walsh, a policeman of the city of St. Louis, who had been on the force seventeen years, was walking beat number two on the night of November 11, 1889; that officer Cox of the adjoining...