6 S.W. 57 (Mo. 1887), State v. Miller

Citation:6 S.W. 57, 93 Mo. 263
Opinion Judge:Ray, J.
Party Name:The State v. Miller, Appellant
Attorney:Sherry & Hughes and W. M. Burris for appellant. B. G. Boone, Attorney General, for the state.
Case Date:November 28, 1887
Court:Supreme Court of Missouri

Page 57

6 S.W. 57 (Mo. 1887)

93 Mo. 263

The State


Miller, Appellant

Supreme Court of Missouri

November 28, 1887

Appeal from Jackson Criminal Court. -- Hon. Henry P. White, Judge.


Sherry & Hughes and W. M. Burris for appellant.

(1) What Agnes Wartz said at the grocery-store and saloon, an hour before the difficulty, was incompetent. It was not a part of the res gestae. (2) The attempts of the prosecuting attorney to impeach the witness, Russell, by asking him concerning his arrest about some affair with the girl, and the people rocking him out of that part of the town, were improper and should not have been allowed. (3) The court erred in excluding the testimony of the witness, Grove, as to what Agnes Wartz said immediately preceding the difficulty. It was a part of the res gestae. (4) It was highly improper for the prosecuting attorney to ask the witness, Russell, what sort of a house the defendant kept. (5) Defendant's attorney should have been allowed to cross-examine Agnes Wartz as to how she knew the difficulty occurred in Missouri. (6) The first instruction is defective in omitting to state that the cutting must have been done feloniously. Hart v. State, 57 Ind. 102; Hunter v. State, 101 Ind. 241; Bird v. State, 8 N.E. 14. An offence which is made a felony by statute must be charged to have been committed feloniously, whether it were felony at common law or not. State v. Jane, 3 Mo. 61; State v. Murdock, 9 Mo. 739; State v. Davis, 29 Mo. 391; State v. Deffenbacher, 51 Mo. 26. (7) The court erred in giving the fourth instruction. State v. Sanders, 76 Mo. 35. (8) The third instruction is erroneous in telling the jury to take into consideration "the reputation of the witness for morality." Only evidence of general character is admissible.

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

(1) The indictment was drawn under Revised Statutes, section 1262, and is in the usual form. (2) No objections were made, or exceptions saved, to the admission or rejection of any evidence to justify a reversal, and the testimony will not be reviewed by this court. State v. McDonald, 85 Mo. 539; State v. Hicks, 92 Mo. 431. The instructions correctly put the case before the jury.


Page 58

[93 Mo. 265] Ray, J.

Defendant was indicted in the criminal court of Jackson county, Missouri, at the May term, 1886, for an assault with intent to kill one Agnes Wartz. No point is made upon the indictment, which is in the usual and due form and need not be further noticed. Upon the trial of the cause, the jury returned a verdict that they found defendant guilty as charged in the indictment, but that they could not agree as to the punishment, whereupon the court fixed the same at imprisonment in the penitentiary for a period of ten years. An extended and detailed statement of the facts and circumstances, as they appear in the record, will not be required. Defendant, who is a colored woman, and said Agnes Wartz, who is a German woman, resided, at the time of the difficulty, on adjoining premises on State Line Street, in Kansas City, Missouri, and not far from the line dividing the states of Missouri and Kansas. There had been ill feelings between them for some time, growing out of causes unnecessary now to notice, and on the evening of May 28, 1886, Agnes Wartz, the prosecuting witness, went over to a grocery-store across the line, in Kansas City, Kansas, for the purpose, as she testifies, of laying in supplies for breakfast next morning, and, as further appears, also for the purpose of having defendant arrested, upon charge of exposing her person and using vile and obscene language. A police officer, in Kansas City, Kansas, of whom she inquired about the arrest of defendant, told her to go back and get a Missouri policeman. She then started back, with a paper of eggs, which she had...

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