State v. Arnold

• Decision Date: 19 November 1907
• Citation: 206 Mo. 589,105 S.W. 641
• Parties: STATE v. ARNOLD.
• Court: Missouri Supreme Court

105 S.W. 641

206 Mo. 589

STATE v. ARNOLD.

Supreme Court of Missouri, Division No. 2.

November 19, 1907.

1. CRIMINAL LAW—TRIAL—ORDER OF PROOF— THREATS OF PROSECUTING WITNESS.

In a prosecution for assault to kill, a state's witness was asked on cross-examination as to statements of the prosecuting witness showing a disposition to kill accused, etc., but the questions were excluded as not competent at that time. The cause was tried on the theory that threats, communicated or uncommunicated, were competent if a defense of self-defense was developed, and other testimony of the kind was subsequently admitted. Accused was fully advised of the ruling, but after developing the defense the witness in question was not recalled for cross-examination. Held, the temporary exclusion of the questions was not error, since the order of introducing testimony is largely in the court's discretion.

2. SAME—EXCLUSION OF EVIDENCE—ORDER OF PROOF.

Exclusion of offered testimony showing threats by the prosecuting witness is not error, when there is no effort to show what threat, if any, was made, for it is the duty of the party alleging error to indicate to the court the nature and character of the evidence which he proposes to elicit.

3. SAME—APPEAL—HARMLESS ERROR—EXCLUSION OF EVIDENCE.

Where the prosecuting witness admitted on cross-examination that he had pleaded guilty to carrying a concealed pistol, the exclusion of a question not limited as to time or place, asking whether that was the only time he had been convicted of carrying concealed weapons or for assault, will not authorize reversal of a conviction, notwithstanding Rev. St. 1899, § 4680 [Ann. St. 1906, p. 2549], providing that one convicted of a crime is a competent witness, but the conviction may be proved to affect his credibility, either by the record or his own cross-examination, upon which he must answer any question relevant to that inquiry, since accused could have introduced the records of conviction, if any.

4. HOMICIDE — APPEAL — HARMLESS ERROR — EXCLUSION OF EVIDENCE.

In a prosecution for assault to kill, exclusion of testimony of accused as to what another person had told him regarding threats of the prosecuting witness was not reversible error, where such person, though summoned as a witness, was not examined, and another witness had testified to hearing the threats.

5. CRIMINAL LAW—NEW TRIAL—MISCONDUCT OF SHERIFF—SUFFICIENCY OF EVIDENCE.

On appeal from an order refusing a new trial in a criminal case, evidence held to sustain a finding of the lower court that there was no misconduct on the part of the sheriff while in charge of the jury.

6. SAME — INSTRUCTIONS COVERED BY THOSE GIVEN.

In a prosecution for assault to kill it appeared that there had been trouble between the accused and the prosecuting witness R. Accused's version was that he was going along the road to his home when R. jumped into the road, with his left side toward accused, and his right hand on his right hip pocket as though to draw a revolver; that no words were spoken, and accused immediately began to shoot, firing as rapidly as he could; that he shot, believing that R. was there for the purpose of killing him. The court charged, on the subject of self-defense that if at the time the accused shot R. he had reasonable cause to apprehend a design on R.'s part to take his life, or do him great personal injury, and there was reasonable cause to apprehend immediate danger of the design being accomplished, and to avert the danger he shot, and if he had reasonable cause to believe, and did believe, at the time that it was necessary to shoot R. in the manner in which he did to protect himself from the apprehended danger, then the jury should acquit on the ground of self-defense; that the danger need not have been actual or real, or impending and about to fall; that it was only necessary that defendant had reasonable cause to believe and did believe those facts. On the other hand, it was not enough for defendant to so believe; he must have had reasonable cause to so believe, and whether he had reasonable cause was for the jury to determine, under the facts and circumstances in evidence; and if he did not have reasonable cause to so believe they could not acquit, though defendant really believed he was in danger. A similar instruction which did not contain the matter including and following "On the other hand" was refused. Held, that the instruction given was sufficient, and the refusal of the requested instruction was not error.

7. SAME—THREATS.

In a prosecution for assault to kill, a refusal of an instruction relating to threats communicated and uncommunicated is not error, where one given covered the part as to communicated threats, and there was no evidence of uncommunicated threats.

8. HOMICIDE—ASSAULT TO KILL—SUFFICIENCY OF EVIDENCE.

In a prosecution for assault to kill, evidence held to sustain a conviction.

Appeal from Circuit Court, Ripley County; J. C. Sheppard, Judge.

George Arnold was convicted of assault to kill, and appeals. Affirmed.

Jno. M. Atkinson, for appellant. The Attorney General and N. T. Gentry, for the State.

GANTT, J.

At the March adjourned term of the Ripley county circuit court, 1906, the defendant was tried and found guilty of an assault with intent to kill George Rutherford, in Ripley county, on the 4th day of September, 1905. The prosecution was commenced by information filed by the prosecuting attorney, and the defendant was duly arraigned and convicted by jury regularly impaneled. From his conviction he has appealed to this court. The errors for which he seeks a reversal of the judgment are those which he conceives were committed in the admission and the rejection of testimony, and in the giving and refusal of instructions, and the alleged misconduct of the prosecuting attorney in his argument, and of the sheriff in relation to his duties with the jury. All of these alleged errors will be considered in the course of the opinion. The testimony discloses that some time prior thereto and on the 4th day of September, 1905, the prosecuting witness, George Rutherford, was living in the north part of Ripley county. About four weeks prior to the difficulty, out of which this prosecution has grown, the defendant, George Arnold, moved from the town of Grandin in Carter county to a vacant house just across the lane, and about 50 yards from the house of the prosecuting witness, Rutherford. It appears that Rutherford and the defendant had been acquainted with each other for some seven or eight years, and they were both tie choppers, and Rutherford had invited the defendant to come up and occupy the house in which he was living at the time of the difficulty. It appears that, some two weeks prior to the assault upon which this prosecution is based, there was some trouble between the defendant and Rutherford at a store in the town of Grandin. Rutherford reminded the defendant that he (the defendant) had purchased an ax at McDowell's store, which Rutherford had stood good for. Defendant admitted that he had not paid for the ax, and Rutherford demanded that he should pay for the same. Later on during the same day, they renewed their conversation about the ax, and defendant became angry, and threatened to strike Rutherford with a bottle of coal oil, but some one interfered, and defendant then picked up a rock and threatened to knock Rutherford's brains out. Rutherford declined to fight, saying he was not able to fight. It seems that Rutherford made complaint to a justice of the peace and had defendant arrested for assault, and defendant in turn made complaint to a justice of the peace and had Rutherford arrested for carrying a pistol. There was evidence that Rutherford requested one or two persons to loan him a pistol, which he desired to take home and protect himself with, but he did not get one. On the day that the case against the defendant was to come up before the justice of the peace, he appeared, but, for some reason not explained in the record, neither the prosecuting witness nor the justice were present, and the defendant accordingly went home. On his way home about 3 o'clock in the afternoon, defendant saw Rutherford in the little lane which runs between the two houses. According to the state's evidence, Rutherford was about 100 yards from his house picking up some stove wood to carry to his home. He saw the defendant some 20 steps away carrying two guns, one the defendant had in his hands and the other strapped over his shoulder. Rutherford, being unarmed, threw up his hands and said "Don't shoot," and started to run. The defendant fired one shot, which took effect in Rutherford's left side, and then fired another shot, which took effect in Rutherford's back. Both shots were fired from a shotgun. The state's evidence further tended to show that Rutherford was in his shirt sleeves, and had no weapon upon or about his person, and made no motion indicating that he was going to draw a weapon. Immediately after the firing of this second shot Rutherford fell to the ground, and the defendant went to a neighbor's and told Mr. Thompson and Mr. Emmons that he had shot Rutherford, and left him lying in the road, and these two gentlemen went to the house of the mother-in-law of Rutherford, and went with her to where Rutherford was lying and carried him home. The defendant's version of the trouble is about this: That he was going along the road to his home, and all of a sudden Rutherford jumped into the road from the south ahead of him some 30 or 40 yards, his left side towards the defendant, and his right hand on his right hip pocket as though about to draw a revolver; that no words were spoken; that defendant immediately began to shoot, firing as rapidly as he could; that he shot, believing that the prosecuting witness was there for the purpose of killing him. Upon examination it was discovered that there were some 25 holes in the back and body of Rutherford...