State v. Bond

• Decision Date: 12 December 1905
• Citation: 90 S.W. 830,191 Mo. 555
• Parties: STATE v. BOND.
• Court: Missouri Supreme Court

90 S.W. 830

191 Mo. 555

STATE v. BOND.

Supreme Court of Missouri, Division No. 2.

December 12, 1905.

1. CRIMINAL LAW—INSTRUCTIONS—REQUESTS.

Where accused went to trial on a formal plea of not guilty, if he desired the court to charge on the question of alibi, it was his duty to call the court's attention to its failure so to charge, and to request an instruction on such question and except to the court's refusal to do so.

2. SAME—SUFFICIENCY OF REQUEST.

A general request that the court declare the whole law governing the case was insufficient to call the court's attention to its failure to charge on alibi.

3. SAME — EVIDENCE JUSTIFYING INSTRUCTIONS.

Where the state's evidence showed that defendant shot prosecutor, and the only evidence in favor of defendant on the subject of alibi was that defendant was seen at another place on the day after the shooting, but there was no evidence that sufficient time had not intervened so that defendant necessarily could not have been in both places, the evidence did not require a charge on alibi.

4. HOMICIDE — SHOOTING WITH INTENT TO KILL—EVIDENCE—QUESTION FOR JURY.

In a prosecution for shooting with intent to kill, evidence held to require submission of defendant's guilt to the jury.

5. CRIMINAL LAW — REQUESTS COVERED BY INSTRUCTIONS GIVEN.

An instruction that the law presumes defendant innocent until the state has proved his guilt beyond a reasonable doubt, and that unless the state has so proven his guilt he should be acquitted, but such a doubt should be a substantial doubt of guilt, and not a mere possibility of innocence, sufficiently covered a request declaring a reasonable doubt to exist when the evidence does not satisfy the jury of the truth of the charge with such certainty that a prudent man would feel safe in acting upon it in his own most important affairs and dearest personal interests.

6. SAME—CIRCUMSTANTIAL EVIDENCE.

Where the court charged that, before the jury would be justified in convicting defendant on circumstantial evidence alone, the circumstances relied on must point to defendant's guilt so strongly as to exclude every reasonable hypothesis except that of defendant's guilt, such instruction substantially covered a request that defendant's guilt could not be presumed, but must be proven by direct or circumstantial evidence, and that there was no direct evidence of defendant's guilt in the case.

7. SAME—MOTIVE.

In a prosecution for shooting prosecutor with intent to kill, a requested instruction that the absence of a motive on defendant's part to commit the crime was a circumstance which the jury ought to consider in arriving at their verdict was properly refused.

8. SAME—CIRCUMSTANTIAL EVIDENCE.

An instruction that circumstantial evidence should always be cautiously considered, and, to warrant a conviction, must produce in the minds of the jury that certainty of guilt that a discreet man would be willing to act on in his own grave and important affairs, and is insufficient unless it excludes every reasonable theory consistent with defendant's innocence, and if the jury were not satisfied of the defendant's guilt beyond a reasonable doubt he ought to be acquitted, though unfavorable circumstances, if any, have not been disproved or satisfactorily explained, was properly refused.

9. SAME — CONTINUANCE — APPLICATION—REQUISITES.

An affidavit for a continuance failing to allege that accused was unable to prove the facts by other witnesses whose testimony could be as readily procured, and that the application was not made for vexation or delay merely, but to obtain substantial justice in the trial of the cause, was fatally defective.

10. HOMICIDE — SHOOTING WITH INTENT TO KILL—INFORMATION—FELONIOUS ASSAULT.

Since an information for shooting and stabbing another in violation of Rev. St. 1899, § 1847, need not allege that the shooting or stabbing was done feloniously, and need not charge an assault, an information under such section was not defective for failure to charge that the "assault" was feloniously committed.

Appeal from Circuit Court, Ozark County; August Cox, Judge.

Thomas Bond was convicted of shooting with intent to kill, and he appeals. Affirmed.

George W. Boone, for appellant. The Attorney General and John Kennish, for the State.

BURGESS, J.

On the 31st day of August, 1903, there was filed in the office of the clerk of the circuit court of Ozark county, by the prosecuting attorney of said county, an information in which it was charged that Thomas Bond and Riley Bond, on or about the 15th day of October, 1901, at said county, did of their malice aforethought shoot and wound, with intent to kill, one D. B. May. Thereafter, at the February term, 1904, of said court, on motion of defendants, a severance was granted them. On the 24th day of November, 1904, the defendant, Thomas Bond, was put upon his trial before the court and jury, found guilty as charged in the information, and his punishment fixed at two years' imprisonment in the penitentiary. After the usual motions for a new trial and in arrest were filed and overruled, defendant appealed.

At the time of the shooting, D. B. May and Riley Bond, father of the defendant, lived about 2½ miles apart. The defendant and his wife were then living with defendant's father, but defendant himself for a short time prior to the difficulty had been away from home. Bad feeling had existed between the defendant and May for some time. About two months before the day of the alleged offense the defendant and May had a difficulty in which the defendant stabbed May in the back with a knife. Upon the 15th day of October, 1901, May had sufficiently recovered from the wound inflicted by the defendant to be out. He had gone on horseback across the White river on business on the morning of that day, and when recrossing the river upon his return, when about 20 steps from the bank in the direction he was going, his horse stumbled, and at the same time he was shot in the back from the rear; the ball passing entirely through his body. About noon of the same day a witness by the name of Hayes, who did not then know the defendant, rode up to Riley Bond's house, fed his horse, and got dinner. As he was riding up, and when within 20 yards of the house, he saw a young man come to the door with a rifle. The man immediately disappeared, and Hayes did not see him again that day. While at dinner Hayes saw two rifles, a Winchester and a muzzle-loading rifle, lying on the bed. The defendant had purchased a new Winchester rifle a short time before that day. Riley Bond informed Hayes that day of the shooting of May that morning. Hayes afterwards picked out the defendant from a number of men in the courthouse in said county as the man he saw with the rifle at Riley Bond's, and at the trial he testified that he looked like the man he saw there at that time. The defendant was seen in the neighborhood shortly before the time of the shooting. On the evening of the 16th day of October, the day after May was shot, the defendant went to the house of his brother-in-law, Frank McMillin. He told McMillin of the shooting of May the morning of the day before, and stated that if May's horse had not stumbled when the trigger was pulled he would never have got out of the creek. Defendant was a witness in his own behalf and denied the shooting and also denied making the statement about May's horse stumbling, as testified to by witness McMillin. There was evidence tending to show that witnesses May and Hayes had made statements out of court in conflict with their testimony at the trial. Evidence was also introduced tending to prove that the defendant had left his father's place and the neighborhood in which the crime was committed, and that he was seen near West Plains the day after the commission of the offense charged. The defendant himself did not testify upon that subject. The defense was a plea of not guilty. At the close of the evidence for the state, and again at the close of all the evidence, the defendant requested the court to give an instruction in the nature of a demurrer to the evidence, which instruction the court refused to give.

The court instructed the jury as follows:

"(1) The court instructs the jury that if you believe from the evidence that the defendant, at the county of Ozark and state of Missouri, at any time within three years next before the filing of the information in this case, did, on purpose and of his malice aforethought, shoot D. B. May with the intent to kill said D. B. May, or do him some bodily harm, you will find the defendant guilty as charged, and assess his punishment at imprisonment in the penitentiary not less than 2 years nor more than 10 years. (2) The term `malice' does not mean mere hatred or ill will, as the term is commonly understood, but it means the intentional doing of a wrongful act, and signifies that state of the mind or disposition that would prompt one man to take the life of another, or do him some great bodily harm, without just cause or excuse. The term `aforethought' means thought of beforehand for any length of time, however short. (3) The law presumes the defendant innocent until the state has proven his guilt beyond a reasonable doubt; unless the state has so proven his guilt, you should acquit him, but such a doubt to authorize an acquittal on that ground alone should be a substantial doubt of guilt, and not a mere possibility of his innocence. (4) Before you will be justified in convicting the defendant upon circumstantial evidence alone, the circumstances relied on must point to the guilt of the defendant so strongly as to exclude every reasonable hypothesis except that of the guilt of the defendant. (5) If you believe that since the alleged commission of the offense charged in this case the defendant has made any statement in relation thereto, you will consider all that he said together. What he said, if anything, against himself, the law presumes to...