State v. Bunyard

• Decision Date: 09 December 1913
• Citation: 253 Mo. 347,161 S.W. 756
• Parties: STATE v. BUNYARD.
• Court: Missouri Supreme Court

161 S.W. 756

253 Mo. 347

STATE v. BUNYARD.

Supreme Court of Missouri, Division No. 2.

December 9, 1913.

1. MAYHEM (§ 4)—INFORMATION—REQUISITES.

An information which alleged that accused feloniously assaulted prosecutor with a knife, and on purpose and of his malice aforethought cut and slit the nose of prosecutor, with intent to maim and disfigure him, sufficiently charges the offense of mayhem, under Rev. St. 1909, § 4480.

2. CRIMINAL LAW (§ 1172)—INSTRUCTIONS— INFORMATION—HARMLESS ERROR.

The error, in an instruction authorizing a conviction of accused if he assaulted prosecutor with a knife, with intent to kill, maim, or disfigure him, arising from the fact that it is broader than the information, charging only an assault with intent to maim, was not prejudicial to accused, where the jury found him guilty as charged in the information, since, in view of the verdict, the jury either interpreted the words "to kill," in the instruction, as placing an additional burden on the state, or the words were rejected as surplusage.

3. CRIMINAL LAW (§ 1163)—APPEAL—HARMLESS ERROR—PRESUMPTION OF PREJUDICE.

That injury resulted to accused from an error in the instructions, must be presumed, unless the record shows the contrary, in which case the conviction will not be disturbed.

4. CRIMINAL LAW (§ 814)—INSTRUCTIONS— ISSUES.

The rule that the instructions must not be broader than the information is limited to cases where it appears that the added charge in the instructions either misled or was calculated to mislead the jury, or where it was attempted by the added charge to cure a defective information.

5. MAYHEM (§§ 2, 6)—EVIDENCE—SELF-DEFENSE.

The defense of self-defense is available to accused charged with mayhem, and where the evidence raises the issue, the court must submit it, as required by Rev. St. 1909, § 5231, requiring written instructions on all questions of law arising in the case, necessary for the information of the jury.

6. CRIMINAL LAW (§ 1172)—HARMLESS ERROR —INSTRUCTIONS.

Where the facts do not justify an instruction on self-defense, accused, not being injured by an erroneous instruction thereon, may not complain.

7. MAYHEM (§ 6)—INSTRUCTIONS—SELF-DEFENSE.

An instruction that, if accused sought or brought on the difficulty, or voluntarily entered into it, he could not justify himself under the law of self-defense is erroneous in not stating the intention with which accused entered into the difficulty.

8. MAYHEM (§ 6)—EVIDENCE—SELF-DEFENSE.

Where accused charged with mayhem on a school-teacher went to the schoolhouse under the influence of liquor, and there assumed an offensive attitude toward the orderly proceedings, by interrupting the exercises, and assaulted the teacher while he was attempting to preserve order, an instruction on self-defense was unauthorized.

9. MAYHEM (§ 6)—TEACHERS—AUTHORITY.

Where a public school-teacher conducted an entertainment in a schoolhouse in the presence of a director, and there was nothing to show that Rev. St. 1909, § 10,784, regulating the use of schoolhouses had not been complied with, the court must presume that the entertainment was held as authorized by law, and that the teacher conducting it was clothed with sufficient power to eject one disturbing the meeting, and when he did so, the one ejected could not assault the teacher, who only used the force necessary to preserve order.

Appeal from Circuit Court, Douglas County; John T. Moore, Judge.

Linzy Bunyard was convicted of mayhem and he appeals. Affirmed.

On an information filed by the prosecuting attorney of Douglas county, charging the appellant with mayhem under the provisions of section 4480, R. S. 1909, appellant was convicted, and sentenced to five years' imprisonment in the penitentiary, from which he appeals. Upon the perfecting of his appeal, he entered into a recognizance, which was approved by the trial court.

The evidence on behalf of the state was substantially as follows: During the month of November, 1912, a young man named Emmet Yoeman was teaching school at Walnut Grove schoolhouse, a few miles from Ava, in Douglas county. On the night of the 2d of November, an entertainment was given at the schoolhouse, which was conducted by Yoeman, the appellant and a large number of others being present. The appellant was heard to say, at a livery barn in Ava the afternoon before the entertainment, that he was going there that night and "tear it up." After the entertainment had commenced, while two little girls were singing, accompanied by Yoeman on the violin, appellant went upon the stage in the rear of the singers and began to sing. Upon Yoeman's looking at him, he went off the stage, shaking his fist at the latter. Later, while the selling of boxes, a part of the entertainment, was in progress, a disturbance occurred in the rear of the schoolhouse, among some boys, and several of them were ejected from the room. As Yoeman went towards the rear door, appellant came up the steps cursing, and took hold of Yoeman, and the latter gave him a shove, shutting the door. After the door was closed, a brother of appellant, who had been guarding the door with Yoeman, said: "Let's open the door, we can keep them out with it open." Yoeman then opened the door and stepped back. The appellant came up the steps the second time, cursing as he came, saying, "Is that you, Yoeman?" or "G____ d____n you, Yoeman," and as he said this, he cut Yoeman across the face. The cut extended across Yoeman's nose and one cheek, severing his nose from his face, with the exception of a little skin on one side, causing his nose to drop over on his check. Yoeman and the appellant then clinched and fell between some desks at the rear of the schoolroom, Yoeman being on top. As they clinched, Yoeman gripped the wrist of the hand in which appellant held the knife with which the latter had done the cutting, and did not release his hold thereon until they were separated. Yoeman was then taken to the front of the school room bleeding profusely. Appellant, who was being held, again sought to reach Yoeman, saying with an oath, "G____ d____n Yoeman, I will finish him while I am at it." Appellant was restrained, however, from further assaulting Yoeman, by one Alt Turner and his brother. Turner testified that he saw the appellant have a knife in his hand at the time, which he took away from him. Turner kept the knife, and it was exhibited in evidence at the trial. A witness for the defense named Homer Martin saw appellant start into the schoolhouse with his knife open, when witness said to him, "Linzy, don't go in there with your knife open; I am a friend to you and you had better not do that." To which appellant replied, "I know you are my friend, but I am going in there— I am going in there to stop that thing." This witness says he saw appellant fall off of the steps on his back; that after falling appellant arose and again went up the steps and entered the schoolhouse.

Two doctors, who arrived several hours after the cutting, found Yoeman in the care of some young ladies. He was very weak from the loss of blood, and his wounds are described as one across the face and nose, another above the ear, and another on the back of the head. His nose lacked but little of being cut off, being held on by a quarter of an inch of skin on the right side. These doctors also testified that there were no large arteries severed by the cut across the face, and that blood would not flow therefrom immediately after the infliction of the wound; that probably 20 seconds or more might elapse before the wound would commence to bleed.

The evidence on the part of the defense is to the effect that, when Yoeman went to quiet the disturbance in the rear of the schoolhouse, appellant was pushed out of the door and fell; that it was Yoeman who pushed him out, saying, "Get out; we are going to have this stopped;" that immediately after appellant struck Yoeman across the face, that before they clinched, no blood was seen on Yoeman's face, and no knife in the hand of the appellant; that after they clinched and fell, appellant yelled, "Pull him off, he is cutting me;" that, while certain witnesses were separating the two, one of them was struck over the eye by one of Yoeman's hands and he received a cut, whether it was by the hand that was holding appellant's wrist is not stated; this same witness, however, testified that he saw a knife in appellant's hand at the time, and that Yoeman was holding the wrist of that hand when they separated them; that after they were separated and Yoeman had been taken to the front part of the house, a woman testified that she took hold of the appellant, and he told her to get back, that he meant to cut him; that some one said about this time, "Emmet (Yoeman) is cut mighty bad," and another said, "He is cut all to hell;" whereupon appellant said, "I am the man that done it." There was testimony that appellant was under the influence of liquor. He denied making any statements at the livery barn in regard to going to the schoolhouse, and that he had had any words or difficulty with Yoeman before the latter pushed him out of the schoolhouse; that when he fell Yoeman said, "I am putting all the drunk men out of the house;" that Homer Martin told appellant not to go into the house with his knife open, and he put it in his pocket; that when he started into the house the second time he said to Yoeman, "Emmet, you are the man that pushed me out of the door"; to which the latter replied, "Yes, I am;" that it looked as though Yoeman was going to give him another shove, and appellant then struck him; that they clinched and went down, and immediately Yoeman began cutting the appellant, and the latter yelled to take him off; that appellant did get his knife out of his pocket while down, and opened the knife with his teeth and cut Yoeman in the face; that th...