State v. Cruts

• Decision Date: 26 May 1921
• Docket Number: No. 22345.,22345.
• Citation: 231 S.W. 602,288 Mo. 107
• Parties: STATE v. CRUTS.
• Court: Missouri Supreme Court

231 S.W. 602

288 Mo. 107

STATE v. CRUTS.

No. 22345.

Supreme Court of Missouri, Division No. 2.

May 26, 1921.

Appeal from Circuit Court, Maries County; J. G. Slate, Judge.

Rainey Cruts was convicted of feloniously shooting another with intent to kill and murder him, and he appeals. Affirmed.

On May 10, 1920, the prosecuting attorney of Monies county, Mo., filed, in the circuit court of said county, a verified information, charging that defendants, Rainey Cruts and D. W. Cruts, on April 14, 1920, in said county, did feloniously shoot one D. W. Bailey, with pistols loaded with powder and ball, in his abdomen and right leg, with the intent to kill and murder him, etc. Said defendants asked, and the court granted, a severance. Thereupon the state elected to go to trial in the case of state against Rainey the fence with Rainey and Dan Cruts; that he was about 13 feet from Rainey when the shots were fired, and that he was never any closer to him; that one of the shots struck him above the right knee.

There was some other testimony of witnesses, as to threats and swearing of both defendants after the shooting was over. The testimony of John Bailey, Oscar Bailey, and Rolla Bailey, who were with their father at the time the above transactions occurred, is practically the same as that of D. W. Bailey. The doctors testified, in substance, that one of the pistol balls struck Dan W. Bailey in the abdomen and lodged against his hip bone.

Defendant's Evidence.

Mrs. Dan W. Cruts and Mrs. Cook both testified, in substance, that they were 45 or 50 steps away when the shooting commenced; that they saw Dan W. Bailey and John Bailey, with their pitchforks, advancing towards defendants like they were going to jab them; that John Bailey was after Dan Cruts, and old man Bailey was after Rainey Cruts; that Rainey fired the first shot, and they then turned back home and saw nothing more of the shooting.

Rainey Cruts, the defendant, testified, in oubstance, that after he and his brother spoke to Dan Bailey, and they exchanged some words about the fire, Dan Bailey then said, "What are you fellows looking for?" and was mad; that defendant then said to him, "I don't care for you burning it, just so you don't get in the fence"; that about that time Dan Bailey took a chew of tobacco, and "kinda" nodded his head, and the boys reached on their shoulders for their forks; that John started at Dan and said, "G____ d____ you!" and Dan Cruts said, "Now, stand back, John," two or three times, and finally reached over to pick up a rock, and John "kinda" stopped; that he (witness) reached over and tapped his brother on the arm and told him not to do that, and his brother Dan dropped the rock; that about the time witness says he got straightened up and turned his head, his uncle Dan Bailey was right at his face almost with a fork; that he would take a little stroke at witness and then gouge; that he hit defendant, jabbed him on the arm, and produced a knot there as large as an egg. Defendant further testified as follows:

"So he just got right across on me. Well, I didn't want to kill him, and the first shot I intended to shoot him in the leg, and he just kept coming, and I just went to shooting wherever I could shoot, and the last shot, the last time he gouged the fork clear past my head, and when he did I just jammed the gun right down on his head. I don't suppose the gun was over that far from his head. When I done that he went back to the back of the fence row just as fast as he come across and throwed his fork down, and that settled it."

Dan W. Cruts corroborates his brother Rainey as to what occurred at time and place of shooting.

Several witnesses testified that defendant had the reputation of being a peaceable, quiet, and law-abiding citizen. Some of the witnesses testified that the general reputation of Dan W. Bailey for truth and veracity was not good, and that he had the reputation of being a quarrelsome, turbulent man. Witnesses were likewise introduced as to the good character of Dan Bailey for truth and veracity, and they testified that he had the reputation of being a peaceable, quiet man.

After the instructions were read to the jury, the latter returned into court the following verdict:

"We, the jury, find the defendant, Rainey Cruts, guilty, as charged in the information, and assess his punishment at imprisonment in the penitentiary for the term of two years."

Defendant, in due time, filed motions for a new trial and in arrest of judgment. Both motions were overruled, and the cause duly appealed by him to this court.

Lorts & Breuer and Holmes & Holmes, all of Rolla, for appellant.

Jesse W. Barrett, Atty. Gen., and Robert J. Smith, Asst. Atty. Gen., for the State.

RAMEY, C. (after stating the facts as above).

1. Under proposition 1 of appellant's "Points and Authorities," it is asserted that—

"In a prosecution under section 3232, R. S. 1919, defendant may be convicted of an assault without malice, and the jury should be so instrutted if the evidence warrants it."

Section 3262, supra, reads as follows:

"Every person who shall, on purpose and of malice aforethought, shoot at or stab another, or assault or beat another with a deadly weapon, or by any other means or force likely to produce death or great bodily harm, with intent to kill, maim, ravish or rob such person, or in the attempt to commit any burglary or other felony, or in resisting the execution of legal process, shall be punished by imprisonment in the penitentiary not less than two years."

It is appellant's contention that he was entitled to an instruction, under the evidence, by virtue of section 3393, R. S. 1919, leaving it to the jury to determine whether the assault was committed with malice aforethought, or with intent to kill, or do some great bodily harm, without malice aforethought. Said section 3693, R. S. 1919, reads as follows:

"Upon an indictment for an assault with intent to commit a felony, or for a felonious assault, the defendant may be convicted of a less offense; and in all other cases, whether prosecuted by indictment, information or before a justice of the peace, the jury or court trying the case may find the defendant not the offense as charged, and find him any offense, the commission of which is necessarily included in that charged against

Several authorities are cited by defendant in support of above contention. We are not disposed to criticize the cases cited, when applied to the facts referred to therein. In construing the two sections of our statute above quoted, we should keep in mind the particular facts of each case coming before us. It may be conceded, for the purposes of the case, that instances may arise under said sections in which it would be proper to submit to the jury the question as to whether defendant might be convicted for a lower offense than that called for in section 3262, supra; but in each case the facts must be sufficient to warrant the court in submitting said issue to the jury.

If the evidence in behalf of the state be taken as true, defendant Rainey Cruts armed himself with a loaded pistol and went to the scene of trouble, where Dan W. Bailey and his three sons were at work on their own premises, engaged in the legitimate business of burning trash thereon. When defendant and his brother approached the division fence, the state's evidence shows that all of the Baileys were standing from 10 to 15 feet from the fence, with their respective corks on their shoulders; that they remained in that condition, and made no effort to advance on defendant and his brother, or to warm either of them; that defendant thereupon pulled his pistol, and without any provocation shot Dan Bailey once in the right leg above the knee, once in the abdomen, and fired two more shots, which...