State v. Emery
| Decision Date | 31 October 1882 |
| Citation | 76 Mo. 348 |
| Parties | THE STATE v. EMERY, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Randolph Circuit Court.--HON. G. H. BURCK-HARTT, Judge.
AFFIRMED.
This was an indictment for assault with intent to kill one Bass, a special policeman. The assault took place in Matthews' saloon in the city of Moberly. Against the defendant's objection, the State was permitted to show that an hour previous to the assault the defendant had had a difficulty at the same place with another person and that Bass had interfered and quelled the disturbance.
Hollis & Wiley for appellant.
D. H. McIntyre, Attorney General, for the State.
The defendant was indicted for assault with intent to kill, and on trial had, was convicted, and his punishment assessed at five years in the penitentiary.
The instructions as well on the part of the State as on the part of the defendant, presented the law of the case very fairly to the jury. No point appears to be made in this court in reference to the instructions.
The defendant was not cross-examined by the prosecuting attorney, consequently the position of the defendant's counsel respecting a matter not found in the record, will not be discussed.
Evidence was admissible to show that the defendant was engaged in a prior difficulty in Matthews' saloon, with a stranger on the same evening, that the felonious assault in question was committed; and this for the purpose of showing that defendant knew the official character of Bass, thereby showing the aggravated character of the assault subsequently made upon him. Defendant in his examination in chief denied that he knew that Bass was a policeman, or that he saw his star. The testimony was, therefore, competent as contradicting that of the defendant in this important particular, and thus affording a basis for assessing a heavier punishment. At any rate the admission of the testimony ought not to reverse the judgment, because the testimony of the defendant's guilt is otherwise so clear that we cannot say that he was prejudiced thereby. State v. Jennings, 18 Mo. 435; State v. Patterson, 73 Mo. 695.
Nor do we discover any ground for reversing the judgment because of the concluding remarks of the prosecuting attorney. If every random or hasty remark of such an official, made in the heat of debate, is to be tortured into a reason for reversing a judgment of conviction, few such judgments would stand, and few punishments be inflicted. Besides, the prosecuting attorney in telling the jury that if “you find the defendant...
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