State v. Pennington

• Decision Date: 05 November 1894
• Citation: 27 S.W. 1106,124 Mo. 388
• Parties: The State v. Pennington, Appellant
• Court: Missouri Supreme Court

27 S.W. 1106

124 Mo. 388

The State v. Pennington, Appellant

Supreme Court of Missouri, Second Division

November 5, 1894

Appeal from Moniteau Circuit Court. -- Hon. D. W. Shackleford Judge.

Affirmed.

Edmund Burke for appellant.

(1) The court erred in the matter of giving instructions. (2) The wife of defendant was an incompetent witness. State v Arnold, 55 Mo. 89; State v. Willis, 119 Mo 185. (3) The court erred in permitting proof of a different assault than the one on trial. (4) The court erred in permitting proof of the former indictment. (5) The second instruction asked upon the part of the appellant was also unexceptionable, should have been given, and its refusal was a ground of error. State v. Vansant, 80 Mo. 72. (6) The fifth instruction asked by the appellant is the law, and should have been given, and its refusal constituted such error as entitles the appellant to a reversal of the judgment. State v. Palmer, 88 Mo. 568. (7) The sixth instruction on the part of the appellant should also have been given, and its refusal is error. State v. McClure, 25 Mo. 340. (8) The seventh instruction asked in behalf of the defendant should also have been given, and its refusal was error, and is not remedied by the seventh instruction given by the court; the latter declares that the jury may disregard the whole of such witnesses' testimony. The seventh instruction in behalf of the appellant declares that the jury may disregard the whole or any part of such witness's testimony. State v. Miller, 93 Mo. 269. (9) The eighth instruction asked in behalf of the appellant has been approved by this court, and should have been given. State v. Palmer, 88 Mo. 573. (10) The ninth instruction asked in behalf of the appellant has been approved by this court, and should have been given. State v. Lowe, 93 Mo. 551.

R. F. Walker, Attorney General, and Morton Jourdan, Assistant Attorney General, for the state.

(1) The wife was a competent witness. 1 Greenleaf's Evidence, sec. 334; State v. Arnold, 55 Mo. 89. (2) The evidence as to the attempted second assault was competent to show defendant's intention when he made the first assault. (3) The admission in evidence of the first indictment did not constitute reversible error.

OPINION

Sherwood, J.

For an assault with intent to kill his wife, made by defendant with a revolver, he was indicted, convicted and sentenced to two years' imprisonment in the penitentiary, and he appeals to this court.

The testimony in brief, is the following: On the twenty-seventh of May, 1891, and for some time before that, trouble had existed in the family of the defendant; his wife had abandoned his home and was living with her daughter, Mrs. Hume. On this day the defendant, armed with a revolver, went to his daughter's place, where his wife then was, proceeded into the house and into the room where Mrs. Pennington was, drew his revolver and pointed it toward her, at the same time saying to her: "Get out of here, you ." His daughter seized the revolver and, during the scuffle that ensued, his wife made her escape. The testimony also shows that during the afternoon of this assault the defendant came back with another and different revolver, attempted to get into the house where Mrs. Pennington was, but was intercepted by the daughter and a Miss Comer on the porch, where they had another scuffle with him and succeeded in again taking the pistol from him; at this time the defendant made the statement that he intended to kill his wife and had come for that purpose. The defendant testified on his own behalf, in answer to the question of counsel whether or not he intended to hurt Mrs. Pennington, and answered: "No, sir, I did not." This is all the testimony offered on behalf of the defense.

This was ample testimony, so far as concerns the mere matter of the assault with felonious intent, and supports the verdict, and the testimony of defendant that he did not intend to hurt his wife, amounts to nothing in the light of the physical and uncontradicted surrounding facts.

Defendant's wife was clearly a competent witness, testifying, as she did, respecting an injury threatened and attempted to be done to her person by her husband.

There was no reversible error committed in permitting a former indictment for the same offense to be read to the jury. Why the prosecuting attorney wished to read the first indictment in evidence is beyond our comprehension; but we will credit the traverse jury with knowing too much to attach any importance to the first and quashed indictment, as evidence, and therefore hold that its admission was not reversible error, especially so, in view of the abundant, clear and uncontradicted testimony showing the guilt of the defendant.

Nor was there any material error committed in admitting Cole to testify after the case was closed. Such maters rest...