State v. Baird
| Decision Date | 29 May 1917 |
| Citation | 195 S.W. 1010,271 Mo. 9 |
| Parties | THE STATE v. PEARL BAIRD, Appellant |
| Court | Missouri Supreme Court |
Appeal from Pemiscot Circuit Court. -- Hon. Sterling H. McCarty Judge.
Reversed and remanded.
Sam J Corbett, Ray G. Garrison and J. E. Duncan for appellant.
The information is fatally defective, in that it fails to inform the defendant of the charge against him. It is in the exact language of the information in State v. Clayton, 100 Mo. 516. See also State v. Davis, 121 Mo. 404; State v. Norman, 136 Mo. 1, and State v Bond, 191 Mo. 555. (2) The court erred in permitting the State to prove that Kit Brandon had a bad reputation for being a lawabiding citizen, the only proper inquiry being his reputation for truth and veracity for the object of impeachment. (3) A defendant cannot be convicted of an assault with intent to kill where the evidence shows that he shot at one man and hit another, for the reason that he must have a felonious intent to shoot the man that was shot. State v. Mulhall, 199 Mo. 202. (4) Instruction No. 1 is erroneous, because: (a) It tells the jury to find the defendant guilty if they "find and believe from the evidence that the defendant with a loaded pistol did then and there shoot and wound the said Mitt Pruitt with said pistol, and (b) that he did so feloniously, willfully and on purpose with the intent to kill the said Mitt Pruitt," there being no charge in the information that the defendant shot and wounded Mitt Pruitt, but only the charge that he made an assault. The assault could have been made without either a shooting or wounding. The defendant was not charged with shooting Mitt Pruitt, but by this instruction he was convicted for it. This was error. State v. Melton, 102 Mo. 685; State v. King, 111 Mo. 578; State v. Johnson, 129 Mo. 26.
Frank W. McAllister, Attorney-General, and Lewis H. Cook for the State.
The information in this case is sufficient in form and substance. It contains every essential allegation to constitute the crime charged, follows the language of the statute and the approved forms of this court. R. S. 1909, sec. 4482; State v. Dunkin, 237 Mo. 195; State v. Helton, 234 Mo. 559; State v. Hendrickson, 165 Mo. 262; Kelley's Crim. Law & Proc., sec. 579.
Defendant, charged by an information filed in the Pemiscot Circuit Court, under Section 4482, Revised Statutes 1909, with an assault with intent to kill one Mitt Pruitt, was found guilty by the trial jury and his punishment assessed at imprisonment in the penitentiary for a term of three years. From the resulting sentence following this verdict he has, in the conventional way, appealed.
The facts of the case run briefly thus: On the 23rd of August, 1915, a number of persons, including Mitt Pruitt, the man who is said to have been assaulted, were driving in farm wagons across the corn field of defendant with the intention of proceeding to a neighborhood cemetery in order to bury the body of a small child. It seems that the route which was being followed by this burial procession had formerly been a road, but that defendant (whether wrongfully or not does not appear) had fenced the same up and had planted it in corn. While this procession was in the field of defendant the latter suddenly appeared near the wagon occupied by one Kit Brandon and after the use of the conventional opprobrious epithets and after having expressed his intention of exterminating the living portion of the entire procession, began shooting at Brandon. The first shot struck Brandon, who thereupon either jumped from the wagon or fell out of it. After Brandon fell and while he was on the ground defendant shot at him twice more, striking him each time, wounding him seriously but not mortally. Mitt Pruitt, the person charged in the information herein as having been assaulted, was riding in a wagon in the rear of the one occupied by Brandon. According to the testimony offered by the State, Pruitt asked defendant, while the latter was engaged in shooting Brandon, not to shoot any more. Immediately thereafter defendant turned to Pruitt and with an oath said to the latter, "I will kill you too," and immediately fired, shooting Pruitt through both legs and the scrotum.
Although the entire attitude and language of defendant, as we find them among the res gestae of the case, indicate that his anger had been caused by, and the reason of his shooting Brandon and Pruitt was that, the funeral procession was driving through his field without his permission and against his consent, yet his defense was that he had not intentionally shot Pruitt, but shot the latter accidentally while firing at Brandon. The reasons given by defendant when testifying as a witness for himself for his assault upon and his shooting Brandon were that the latter had been criminally intimate with his (defendant's) wife. Upon the trial, remarkable to say, Brandon, who had then recovered from his somewhat serious wounds, testified for defendant and admitted his intimacy with defendant's wife, and the fact that knowledge thereof had come to defendant shortly before the shooting. Brandon also swore that defendant was not shooting at Pruitt, but was shooting at the witness. Upon this latter question, however, the preponderance of the evidence was against defendant and the jury evidently found against him thereon, as their verdict conclusively shows, and we need not trouble ourselves with this point.
Following the case of State v. Mulhall, 199 Mo. 202, 97 S.W. 583, the trial court instructed in substance that if defendant were in fact shooting at Brandon with the intent to kill the latter and in so doing without intending so to do shot and wounded Pruitt, he should go acquit. Notwithstanding this instruction the jury found defendant guilty and assessed his punishment at three years' imprisonment in the penitentiary.
Such further facts as shall serve to make clear the points urged upon our attention will be set forth in connection with our discussion of these points.
Three points alleged to be meet for reversal are urged upon our attention: (a) The insufficiency of the information; (b) the badness of instruction numbered 1, and (c) errors in the admission of certain evidence.
I. Taking these up in the order in which we set them out, we note the information, omitting verification, venue and merely formal parts, which are conventional and in no wise questioned, is in the following form, to-wit:
"Comes now C. E. Bragg, prosecuting attorney for and within the county of Pemiscot and State of Missouri, who upon his official oath as such prosecuting attorney informs the court that, in the county of Pemiscot and State of Missouri, upon or about the 23d day of August, 1915, one Pearl Baird, upon the body of one Mitt Pruitt, then and there being feloniously, on purpose and wilfully, with a certain deadly weapon, to-wit, a pistol, loaded with gunpowder and leaden balls, which he, the said Pearl Baird, then and there had and held, did then and there make an assault with the intent him, the said Pruitt, then and there to kill, against the peace and dignity of the State."
While an information similar to the above was held bad in the case of State v. Clayton, 100 Mo. 516, 13 S.W. 819, the latter case did not follow precedents, nor has it been followed consistently, but on the contrary wholly ignored by practically all of the later cases. [State v Hendrickson, 165 Mo. 262, 65 S.W. 550; State v. Helton, 234 Mo. 559, 137 S.W. 987; State v. Duncan, 237 Mo. 195, 140 S.W. 882; Kelley's Crim. Law & Proc., sec. 579.] The alleged phase of badness and that decided so to be in the Clayton case, consists in the failure to specifically prefix before the allegation of intent the word "felonious." Stripped of intervening verbiage the information herein charges that defendant "upon the body of one Mitt Pruitt, then and there being, feloniously . . . did then and there make an assault with the intent him the said Pruitt then and there to kill." It is a little difficult to discover upon a careful scrutiny of the above language, any solid ground on which to bottom...
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