State v. Duncan
| Decision Date | 01 February 1898 |
| Citation | 44 S.W. 263,142 Mo. 456 |
| Parties | The State v. Duncan, Appellant |
| Court | Missouri Supreme Court |
Appeal from Platte Circuit Court. -- Hon. William S. Herndon, Judge.
Affirmed.
John W Coots for appellant.
(1) The court erred in the third instruction given on the motion of the State. It does not properly define reasonable doubt. It entirely ignores that element of doubt that might arise from the insufficiency of the evidence, and really casts upon defendant the burden of proving his innocence. State v Blue, 136 Mo. 41, and authorities cited. And as defendant interposes the plea of self-defense, this instruction is doubly obnoxious. State v. Hickman, 95 Mo. 322. (2) The court erred in refusing defendant's fourth and sixth instructions, defining common assault. The evidence on the part of defendant showed that he did not use a deadly weapon in the alleged assault on Andrews, but merely a small block of wood or a piece of brick which he threw without any design to inflict more than a battery. State v. Fredericks, 136 Mo. 51; State v. Smith, 37 Mo.App. 137. (3) The court erred in refusing the fifth instruction asked by defendant. Under the circumstances of this case, he was entitled to the benefit of this instruction, to remove from the minds of the jury any feeling of prejudice in their minds that might have been engendered by his having attempted to ride on the train without payment of his fare.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
(1) The record discloses that instructions were given for "assault with intent to kill; with malice aforethought assault to kill without malice; self-defense, the competency of defendant as a witness; credibility of witness and reasonable doubt." These instructions cover every element of the case upon which there was testimony to warrant an instruction. State v. Kelley, 136 Mo. 18; State v. Miller, 93 Mo. 263. (2) No error was committed by the court in giving the instruction on the question of reasonable doubt. It fully conforms to the ruling of this court on the subject. State v. Nueslein, 25 Mo. 111; State v. Bobbst, 131 Mo. 339. The criticism and comments of this court upon an instruction of this character in the case of State v. Blue, 136 Mo. 41, are fully complied with and satisfied. (3) The court's instruction given on behalf of the State on the question of self-defense is a clear expression of the law governing such cases. McClain's Crim. Law, sec. 246; State v. Cotton, 31 Miss. 504; State v. Fontenberry, 55 Miss. 403; State v. Smith, 125 Mo. 2. (4) Defendant insisted on the court giving instruction number 5 offered by him which embodies the principle of common assault. The evidence in the case does not warrant such an instruction. The assault was either made with intent to kill or was in pure self-defense. State v. Collins, 81 Mo. 652; State v. Thomas, 99 Mo. 235; State v. Mitchell, 98 Mo. 257. (5) Nor should instructions upon a lower grade than that mentioned in the indictment be given unless there be evidence of such lower grade. State v. Smith, 114 Mo. 604; State v. Umbls, 115 Mo. 452; State v. Henson, 106 Mo. 66.
At the April term, 1897, of the circuit court of Platte county, the defendant was convicted of a felonious assault with intent to kill one G. L. Andrews. The jury by their verdict failed to fix the punishment, whereupon the court assessed it at three years' imprisonment in the penitentiary. Defendant then filed motions for new trial and in arrest, which being overruled, he saved his exceptions and appealed.
At the time of the assault G. L. Andrews, upon whom it was committed, was a conductor on a freight train of the Chicago & Great Western Railroad, which runs through Platte county Missouri. On the ninth of October, 1894, when Andrews was running his train upon said road, he had orders at the town of New Market to wait for the south-bound passenger train and had headed in at that place. On going from the rear to the front end of the train he passed along the side of the cars and saw the defendant on the front end of a car. He requested him to get down, which he did, and walked with Andrews to the depot, where he left him and went around the depot. On going into the depot Andrews received orders to "wait" his train at Dearborn. He at once started out with his train. He had a stock car in his train that had to be set out at Dearborn, and when he reached that place he walked up where the brakemen were cutting off the car, and as he passed up along the train he saw the defendant on the same car again. He then said to him, "Captain, get out and stay out; I can not carry passengers, and I want you to get off; there will be a train along in ten minutes." He then asked the defendant where he was going. The defendant answered, "to Fossett." He told him that his train did not stop there. The defendant then got off the car and made some remark which Andrews did not understand. Andrews then walked away, and for a few minutes stood, perhaps fifteen feet from the side of the train, when he heard someone hollow "look out," and as he turned sideways the defendant struck him on the side of the head. He did not see what defendant held in his hand, but stated that there was a pile of "scraps" near by that the section men had collected along the road and thrown into a pile to be shipped out as soon as they had accumulated a sufficient amount for a carload. Next morning after the assault, a piece of scrap iron or a part of a car link was found near where he stood, and on it there was some blood and hair. Watson, the station agent, took charge of the piece of car link and kept it for some time in his office, but it was misplaced by some means and was not introduced in evidence. After Andrews was struck by the defendant he fell to the ground, and was picked up by the brakemen and station agent in an unconscious condition, and placed upon his train and taken to Kansas City. One of the brakemen testified that he saw the defendant throw something at Andrews, but on account of its getting dark, he was unable to tell what it was. While upon the witness stand defendant admitted that he threw something at Andrews. He, however, could not tell whether it was iron, brick or wood that he threw. He claims to have committed the act in self-defense, stating that while he was standing upon the car and had been requested upon the two occasions mentioned to get down and off and not ride further, that he told Andrews that if he did not want him to ride on his train he would not, and that he did not intend to get on again, but that Andrews commenced and continued to make insulting remarks to him, and as he walked off followed him in close pursuit, and that in order to avoid or prevent being injured...
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