State v. Clancy

• Decision Date: 12 February 1910
• Citation: 225 Mo. 654,125 S.W. 458
• Parties: STATE v. CLANCY.
• Court: Missouri Supreme Court

125 S.W. 458

225 Mo. 654

STATE v. CLANCY.

Supreme Court of Missouri. Division No. 2.

February 12, 1910.

1. CRIMINAL LAW (§ 814) — TRIAL — INSTRUCTIONS.

In a prosecution for assault with intent to kill, where there was no evidence that the instrument used was a deadly weapon, it was error for the court to instruct upon the theory of a felonious assault with a deadly weapon, to wit, a heavy glass bottle.

2. HOMICIDE (§ 268) — TRIAL — QUESTIONS FOR JURY.

In a prosecution for assault with intent to kill, where the instrument used was simply described as a "Bevo" bottle, without describing it, giving its dimensions or condition as full or empty, it was for the jury to determine, under proper instructions, whether or not it was a deadly weapon.

3. HOMICIDE (§ 90) — TRIAL — VERDICT.

In a prosecution for assault with intent to kill, the jury must find that the instrument used was a deadly weapon in order to convict defendant.

4. CRIMINAL LAW (§ 722) — TRIAL — REMARKS AND CONDUCT OF COUNSEL — "POLICE CHARACTER."

In a prosecution for assault with intent to kill, the circuit attorney referred to the defendant as a "police character," and on defendant's objection the judge said he did not know what was meant by "police character," but on the circuit attorney's explaining that it meant a man who was under the surveillance or suspicion of the police, the court, stated that he would sustain the objection and "correct the circuit attorney." There was no evidence that defendant was a police character. Held, that this procedure constituted prejudicial error, since the court should have rebuked the attorney, and instructed the jury to disregard these remarks.

Appeal from St. Louis Circuit Court; Chas. Claflin Allen, Judge.

Patrick Clancy was convicted of assault with intent to kill, and appeals. Reversed and remanded.

C. Orrick Bishop, for appellant. E. W. Major, Atty. Gen., and Jno. M. Dawson, Asst. Atty. Gen., for the State.

BURGESS, J.

On November 30, 1908, in the circuit court of the city of St. Louis, defendant was convicted of the crime of assault with intent to kill, with malice aforethought, under an indictment charging him with said offense, and his punishment assessed by the jury at five years in the penitentiary. Motions for new trial and in arrest of judgment were filed by defendant, and, the same being overruled by the court, defendant appealed.

The evidence developed the following state of facts: Harry V. English, the victim of the assault, was a dealer in cigars and tobacco, at 2028 Olive street, in the city of St. Louis. At about 8 o'clock in the evening of the 12th day of October, 1908, he was in his store, standing in front of a cigar case, reading a newspaper, his back being towards the door, when defendant came in and struck him on the back of the head. Turning around, he recognized and grappled with the defendant, and a scuffle ensued during which the cigar case was broken. Defendant was followed into the store by another man, who said, "Wait a minute, and I'll get him." This party took a stool which was in front of the counter and endeavored to strike English with it, but the latter clung close to the defendant and held him in such a way that his new assailant could not strike him at that time. During the struggle, the defendant seized what was called a "Bevo" bottle, which was on the counter, and struck English therewith on the head. He fell down between two cigar cases, and his two assailants struck him several times while down, but he managed to protect himself to some extent by using his feet. While on the floor, English drew a revolver out of his pocket, whereupon the defendant and the other man ran out of the store, the defendant going without his hat but taking the bottle with him. English got up and went to the door, and seeing the defendant running across the street he fired three times at him, two of the shots taking effect, one in the left arm and the other in the left leg. Defendant was pursued by a police officer and arrested. At the time of his arrest he was hatless and still had the "Bevo" bottle in his hand. He was taken back to English's store, where two hats were found lying on the counter, one of which defendant claimed as his and put it on. The bottle in question was offered in evidence, and identified by said police officer as the one he saw in defendant's possession when he arrested him. It was also identified by English as the one by which he was struck. English testified that there was a great flow of blood from the wound in his head inflicted by the defendant; that his wife washed off the blood, and that he was then taken to the city dispensary, where his wounds were dressed; that since the time of the assault he had a "sort of headache" all the time.

The evidence shows that on October 7, 1908, the defendant was convicted of the crime of false registration in the city of St. Louis, and that English and one Max Klein were witnesses against him at the trial which resulted in his said conviction; and it also...