State v. Dooley

• Decision Date: 08 May 1894
• Citation: 26 S.W. 558,121 Mo. 591
• Parties: The State v. Dooley et al., Appellants
• Court: Missouri Supreme Court

26 S.W. 558

121 Mo. 591

The State v. Dooley et al., Appellants

Supreme Court of Missouri, Second Division

May 8, 1894

Appeal from Lafayette Criminal Court. -- Hon. John E. Ryland, Judge.

Reversed and remanded.

Pope Higgins and Samuel Davis for appellants.

(1) The fifth instruction for the state is misleading, in that it leaves out of view the question of intent, which is the very essence of this case. (2) The fifth, seventh and ninth instructions for the state tend to confuse the jury as to what constitutes the offense charged, and give the jury to understand that they may convict, regardless of the intent with which the assault was made. (3) The eighth instruction given for the state is not warranted by the evidence. Evans if constable at all, was constable of a township in Lafayette county, and Bennett was marshal of Higginsville in Lafayette county, while the pretended arrest was made in Saline county. (4) The evidence tends to prove that defendants intended to compel Bennett and Evans to give up the horses by putting them in fear, and, in the absence of qualifying circumstances, might show an assault with intent to rob, but in view of the claim of ownership by defendants, it does not show even that, and defendant's sixth instruction should have been given. (5) The verdict is a nullity. It does not find defendants guilty of assault "with intent" to kill nor of common assault, and yet the court refused the fine as fixed by the jury because it was not large enough and assessed a higher fine, assuming that the jury intended to find defendants guilty of assault "with intent" to kill. (6) The forcible taking of the horses by Bennett and Evans was a trespass ab initio, and the seventh instruction asked by defendants should have been given. 5 Lawson on Criminal Defense, 871; Finn v. Corn, 6 Pa. St. 460; 1 Bish. Crim. Law, secs. 41, 537; 6 Baxter, 608; Corn v Mason, 116 Mass. 58; State v. Forsythe, 89 Mo. 667; Roberts v. State, 14 Mo. 138.

R. F. Walker, Attorney General, for the state.

(1) The indictment in this case is sufficient, and follows the language of section 3489, Revised Statutes, 1889, under which it is drawn. (2) The verdict is supported by the testimony, and was such as warranted the trial court in submitting defendant's guilt or innocence to the jury; no prejudice, passion or misconduct on the part of the jury is suggested by the record. This being true, the judgment should be affirmed. State v. Banks, 118 Mo. 117 and cases cited. (3) Having been convicted of assault with intent to kill without malice, appellants are in no position to complain of any instructions relating to the offense of assault to kill with malice. State v. Dunn, 80 Mo. 681. (4) The instructions which relate to and cover the offense of which they were convicted correctly declare the law and are not subject to criticism of the appellants; those asked by the defendants and refused by the court were erroneous and unsupported by the testimony, and were properly refused. (5) It does not appear in what respect the court erred in admitting and excluding testimony. From a careful reading and examination of the record, we find nothing prejudicial to the defendant. (6) The appeal in this case, seems to be without merit. The defendants were convicted of a lesser offense than that authorized by the testimony, and the only error apparent from the record is that the jury attempted to exercise the power of commuting or pardoning by assessing a fine against the defendants, when under the testimony they would have been warranted in assessing their punishment at imprisonment in the penitentiary.

OPINION

Gantt, P. J.

On the fifteenth of June, 1892, Mrs. Gus Price was the owner of two horses, which were in the possession of the defendants at Sweet Springs. Mrs. Price resided at Higginsville, in LaFayette county, and had offered a reward for these horses. R. T. Bennett was city marshal of Higginsville, and George C. Evans constable in Davis township, in Lafayette county.

On the fifteenth of June, 1892, Gus Price was engaged in driving for the defendants on their bus line from the city of Sweet Springs to the well known water resort of the same name, close by. He drove the horses that belonged to his wife. On this day, marshal Bennett and constable Evans arrived at Sweet Springs and made known to defendants that they had a warrant for the arrest of Gus Price for stealing these horses, and they arrested Price, and told Dooley they would start with Price and the horses that night. In the meantime Price proposed to sell the horses to W. H. Dooley, and Dooley agreed to give him $ 150 and stand good for all the expenses. There was no evidence that Dooley paid Price anything for the horses in pursuance of this agreement.

It does appear in a general way that the defendants had hired the horses, and Price to drive the bus, but the terms of this hiring and the time it was to continue, is nowhere stated. After the talk of selling to the defendants, Bennett and Evans proceeded to take the horses from defendants' stables at the Springs, but just as they were on the eve of starting, the eldest Dooley appeared at the stables and forbade their moving the team. Bennett and Evans apparently acquiesced that night and left the horses in defendants' stable. Next morning the team was hitched to the bus and placed in charge of a driver named Taylor and was driven into the city to the station to meet a train. Defendant Harvey Dooley accompanied the bus.

In the meantime Bennett had hired a carriage from another liveryman and procured two extra halters. While the team was standing at the station awaiting the train, Bennett, Evans and Gus Price suddenly appeared and at once began to unhitch the horses from the bus. Harvey Dooley wanted to know if they had a warrant for the horses, and they said no, that Price had told them to take them; and, when asked, Price said he gave them authority to take them. They placed the extra halters on the two horses and left in the carriage, leading the Price horses. Harvey Dooley at once notified his father and codefendant. Harvey armed himself with a Winchester rifle, and William H. Dooley took a revolver, and, mounting their horses, they pursued Bennett and Evans. They overtook them near the town of Concordia, in Lafayette county. They rode up on either side of Bennett's carriage, ordered the driver to stop, which he did, and they pointed their weapons at Bennett and Evans, ordered them to throw up their hands and turn the horses loose, or they would shoot their heads off. Bennett and Evans made no resistance but at once released the horses, and, at defendants' command, the driver drove them on to Higginsville, and the defendants returned with the horses to Sweet Springs. Bennett and Evans had no writ for the horses.

In a few days the defendants released the horses to Price's son, or stepson, on condition that Price would first pay his attorney his fee. It appeared incidentally in the evidence that Evans was prosecuted and fined $ 1 for malfeasance in Saline county, for his conduct in the affair.

The defendants were indicted for an assault with intent to kill Bennett, with malice aforethought, and were convicted of an assault to kill, without malice, and a fine of $ 75 each assessed against them by the jury, which the court increased to the minimum fine of $ 100 each, and from these fines they appeal.

I. The indictment was sufficient and follows the statute under which it was drawn. R. S. 1889, sec. 3489. A point is made on the insufficiency of the verdict because "the jury found the defendants guilty of assault to kill without malice," instead of an assault "with intent to kill."

This point was ruled adversely to defendants' contention in State v. Clarkson, 96 Mo. 364, 9 S.W. 925. The form of the verdict was well enough.

II. Nothing prejudicial in the admission or rejection of evidence is assigned as error, nor do we discover anything material.

III. All the assignments of error relate to the giving and refusal of instructions, and these will be examined. The court instructed on assault with intent to kill, with malice aforethought, and for assault with intent to kill, and for simple assault. As the jury found there was no malice, it is unnecessary to discuss the sufficiency of the instructions as to assault with intent to kill with malice aforethought.

In the fifth instruction for the state the court instructed the jury that "if defendants in a threatening manner, pointed a loaded pistol and rifle, or either, at Richard T. Bennett, within shooting distance of said Bennett, such act of defendants constitutes, in law, an assault." This was a correct definition of an assault as applied to the facts of this case. The intent with which that was done was left to another instruction. It was entirely proper, however, to advise the jury what constituted an assault.

In the seventh instruction the jury were told that "if the defendants assaulted Richard T. Bennett with deadly weapons and demanded that the horses in controversy be surrendered or turned over to defendants, and by reason of such assault said horses were turned over to defendants and the use of such weapons prevented or avoided, then the fact that the said weapons were not used because of a compliance with such demand, constitutes no excuse or defense to defendants."

In other words, the court simply told the jury that an assault with a deadly weapon, once entered upon, and partly executed was no less an assault because it did not proceed to the last extremity threatened, simply because the assaulted party yielded to the enforced demand. It needs no reason or authority to sustain this instruction.

The ninth instruction for the state told the jury that "even though they...