State v. Curtner

• Decision Date: 24 November 1914
• Docket Number: No. 18105.,18105.
• Citation: 262 Mo. App. 214,170 S.W. 1141
• Parties: STATE v. CURTNER.
• Court: Missouri Supreme Court

170 S.W. 1141

262 Mo. A. 214

STATE v. CURTNER.

No. 18105.

Supreme Court of Missouri, Division No. 2.

November 24, 1914.

1. HOMICIDE (§ 310) — ASSAULT WITH INTENT TO KILL — INSTRUCTIONS — STATUTE.

Where, under the evidence, accused was either guilty of shooting another with intent to kill, made punishable by Rev. St. 1909, § 4481, or was justified on the ground of self-defense, the court need not instruct as to the law of Rev. St. 1909, § 4482, making punishable assaults with intent to kill, for which no other punishment had been thereinbefore prescribed.

2. WITNESSES (§ 388) — IMPEACHMENT — CONTRADICTORY STATEMENTS — FOUNDATION.

A witness cannot be impeached by evidence of contradictory statements, where he was not examined as to such statements while he was testifying.

3. HOMICIDE (§ 339) — APPEAL — HARMLESS ERROR — EXCLUSION OF EVIDENCE — CURE BY OTHER EVIDENCE.

Error, if any, in excluding evidence as to the details of a previous altercation between defendant and prosecuting witness on the day the shooting took place was cured by the subsequent admission of evidence of those details.

4. CRIMINAL LAW (§ 404) — EVIDENCE — WOUNDS INFLICTED.

Where accused shot the prosecuting witness with a shotgun, the shot striking him in the face and destroying his eyesight, it was not error to permit the witness to exhibit his wounds to the jury, even though it might have a tendency to prejudice the jury against accused, since the inflicting of a greater punishment in cases, where the act was particularly cruel, was justified.

5. HOMICIDE (§ 354) — SENTENCE — PREJUDICE OF JURY.

In a prosecution for shooting another with intent to kill, for which the maximum penalty prescribed by Rev. St. 1909, § 4481, is ten years' imprisonment, a sentence of seven years does not indicate malice or prejudice on the part of the jury, where the state's evidence showed that defendant deliberately and without provocation shot the prosecuting witness in the face, destroying his eyesight.

Appeal from Circuit Court, Pemiscot County; Frank Kelley, Judge.

Ches. Curtner was convicted of assault with intent to kill, and he appeals. Affirmed.

Adjudged to serve a term of seven years in the penitentiary for assaulting with intent to kill one Lonnie Howell, defendant appeals to this court.

On February 9, 1912, defendant met Lonnie Howell and his father-in-law, Bud Rockett, at the town of Braggadocio, Mo. All these parties lived on nearby farms and had walked to town. A heavy snow was falling. Howell and Rockett became drunk and talked and acted boisterously. They engaged in a quarrel with defendant because the latter made some remark about their being drunk when one of them fell in the snow. Howell cursed defendant and threatened to shoot him, unless he shook hands and made friends. There is no evidence that any of the parties were armed at that time, though there is some evidence that Howell placed his hand in his pocket as if to draw a revolver at the time he made the threat before mentioned. After shaking hands with defendant, Howell and Rockett started home slowly, staggering along the road arm in arm.

According to the testimony on behalf of the state, as soon as Howell and Rockett left town, defendant, who was sober, went into a store and called for shotgun shells. On being informed that the merchant had none, except those loaded with No. 8 shot, defendant remarked that he wanted larger shot, but, being in a hurry, would take 10 cents worth of the shells offered to him. He received three shells loaded with No. 8 shot. Immediately after procuring the shells, defendant went to the home of his sister, a few blocks distant, to borrow a gun. To her he was heard to say, "I'll shoot him if I have to borrow a gun." Failing to procure a gun at the home of his sister, defendant visited two other parties in Braggadocio, where he made unsuccessful attempts to borrow a shotgun. He then followed Howell and Rockett down the road at a rapid gait. While Howell and Rockett were walking around a wagon which they met in the road, defendant, apparently unobserved, ran around the opposite side of the wagon and got ahead of them. After going a short distance further, defendant went into the home of one Hatley, where he again asked to borrow a shotgun. Hatley's boy replied that he had a Winchester shotgun, but that he intended to use it hunting rabbits as soon as he could go to town and get some shells. To this statement defendant replied that there was a rabbit out on the road between Hatley's house and town which he wanted to kill. Defendant and young Hatley then loaded the shotgun with defendant's three shells and started to town; Hatley carrying the gun. After going a very short distance they met Rockett and Howell, and, when they were about 30 feet from the latter, defendant took the gun from the Hatley boy and, without saying a word, shot Howell in the face, inflicting severe wounds and completely destroying his eyesight.

Howell testified that he had his hat pulled down over his eyes to keep out the drifting snow, and did not know that defendant was within a mile of him when the gun was fired. Defendant testified...