State v. Brent

• Decision Date: 02 June 1890
• Citation: 100 Mo. 531,13 S.W. 874
• Parties: STATE v. BRENT.
• Court: Missouri Supreme Court

13 S.W. 874

100 Mo. 531

STATE v. BRENT.

Supreme Court of Missouri.

June 2, 1890.

WITNESS — CROSS-EXAMINATION OF DEFENDANT — ASSAULT.

1. On the trial of indictment for a felonious assault, where defendant is a witness in his own behalf, it is error to require him, upon cross-examination, to answer the question, "Were you not convicted of a felony in this state?"

2. Under section 1655, Rev. St. Mo. 1879, a conviction for a common assault may be had under an indictment for assault with intent to kill.

Appeal from circuit court, Hickory county; W. I. WALLACE, Judge.

C. S. Essex and Amos S. Smith, for appellant. The Attorney General, for the State.

RAY, C. J.

The defendant was indicted in the circuit court of Hickory county for assault with intent to kill, and upon trial was convicted, and fined $100. The defendant was introduced at the trial as a witness in his own behalf, and on cross-examination was compelled, over his objection, to answer the following question: "Were you not convicted of a felony in this state?" The witness answered, "I was." Under numerous decisions, this is reversible error. State v. McGraw, 74 Mo. 573; State v. Rugan, 68 Mo. 214, and authority cited; 1 Greenl. Ev. §§ 377, 457; State v. Turner, 76 Mo. 350; State v. McLaughlin, Id. 320; State v. Porter, 75 Mo. 171; State v. Douglass, 81 Mo. 231; State v. Lewis, 80 Mo. 110; State v. Patterson, 88 Mo. 88; State v. Chamberlain, 89 Mo. 133, 1 S. W. Rep. 145. As the case must go back, we may add that a conviction for a common assault may be had under an indictment for assault with intent to kill, and such seems to have been the result in this case, (section 1655, Rev. St. 1879; State v. Burk, 89 Mo. 635, 2 S. W. Rep. 10, and cases cited;) and if, on retrial, the evidence should so justify, an instruction to that effect could properly be given.

We deem it unnecessary to now notice other matters complained of. For the reasons above cited the judgment of the trial court is reversed, and the cause remanded for further proceedings in conformity herewith. All concur, except BRACE, J., absent.