4 S.W. 274 (Mo. 1887), State v. Washburn

Citation:4 S.W. 274, 91 Mo. 571
Opinion Judge:Black, J.
Party Name:The State v. Washburn, Appellant
Attorney:No brief for appellant. B. G. Boone, Attorney General, for the state.
Case Date:May 16, 1887
Court:Supreme Court of Missouri
 
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Page 274

4 S.W. 274 (Mo. 1887)

91 Mo. 571

The State

v.

Washburn, Appellant

Supreme Court of Missouri

May 16, 1887

Appeal from Jefferson Circuit Court. -- Hon. J. L. Thomas, Judge.

Affirmed.

No brief for appellant.

B. G. Boone, Attorney General, for the state.

(1) The indictment properly charges a felonious assault and is drawn upon section 1264, Revised Statutes. (2) Objections must be made and exceptions saved to errors occurring during the progress of the trial to entitle them to a review by this court. This rule is applicable in criminal as well as in civil cases. R. S., sec. 1921; State v. Lett, 85 Mo. 52; State v. McDonald, 85 Mo. 539, and cases cited; State v. Rockett, 87 Mo. 669; State v. Reed, 4 West. Rep. 695; S. C., 89 Mo. 168; State v. Burk, 6 West. Rep. 669; S. C., 89 Mo. 635. (3) The separation of the jury, complained of by defendant, is not such a violation of sections 1909, 1966, Revised Statutes, as to justify a reversal. It is only where it appears that jurors have been tampered with or a defendant prejudiced that this court will reverse on account of a separation. State v. Bell, 70 Mo. 633. Where the separation is through necessity and there is no evidence of prejudice to defendant, there is no ground for reversal. State v. Collins, 86 Mo. 245; State v. Payton, 7 West. Rep. 129; S. C., 90 Mo. 220. (4) The conversation of the prosecutng attorney with one of the jurors in the presence and with the permission of the court, in reference to the juror's testimony in another case, was not such conduct as to justify a reversal. Thom. & Merr. on Juries, sec. 349, and cases cited under notes 1 and 2.

OPINION

[91 Mo. 572] Black, J.

The defendant was indicted under section 1264 for a felonious assault. He was found guilty, and his punishment assessed at two years imprisonment. He has filed no brief; and we only have the motion for a new trial as indicating his complaint which leads to this appeal.

The evidence of a number of witnesses for the state shows that the defendant entered a saloon and at once, without any provocation or excuse, began cursing and abusing Schaeffer, the barkeeper, who directed him to desist from the use of such language and boisterous conduct. Thereupon, the defendant threw a beer glass at Schaeffer, while the latter had his back turned toward defendant and was in the act of drawing a glass of beer...

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