State v. Ethridge

Decision Date16 May 1905
Citation188 Mo. 352,87 S.W. 495
PartiesSTATE v. ETHRIDGE.
CourtMissouri Supreme Court

2. In a prosecution for felonious assault committed by defendant and his brother, the court admitted evidence of a previous controversy between prosecutrix and defendant's brother, stating, as he did so, that it was admissible to show "preparation," and for no other reason. It was subsequently developed that defendant took no part in the previous dispute. Held, that the use of the word "preparation" in the court's ruling was not reversible error.

3. In a prosecution for felonious assault, a statement of defendant's mother, made in defendant's presence to the constable who then had defendant under arrest, that she had tried to keep defendant out of the difficulty, but that he had planned the same, was inadmissible, notwithstanding a statement by defendant made at the time that he "was mad and aimed to do it," where such statement was not made in reply to what his mother had said, but rather in answer to something else.

Appeal from Circuit Court, Barry County; H. C. Pepper, Judge.

Nate Ethridge was convicted of assault with intent to kill, and appeals. Reversed.

Davis & Steele, for appellant. H. S. Hadley, Atty. Gen., and Rush C. Lake, Asst. Atty. Gen., for the State.

GANTT, J.

This prosecution was commenced in the Barry county circuit court by information filed by the prosecuting attorney, wherein the defendant and his brother, Ella Ethridge, were charged with a felonious assault upon Mrs. M. E. Wilson with a stick of sawed timber three feet long, two inches wide, and two inches thick, with intent to kill said Mrs. M. E. Wilson. The information is duly verified. The defendant was found guilty, and his punishment assessed at imprisonment in the penitentiary for two years. After ineffectual motions for a new trial and in arrest of judgment, he appealed to this court.

The prosecutrix and the defendant lived on farms in the same neighborhood on February 12, 1903. It appears that on that day the defendant and his brother, Ella, were hauling wood or rails from a 40-acre tract owned by Ella Ethridge. The defendant and his brother lived west of Wilson's, and on the day mentioned had been to this 40-acre tract, and about 4 or 5 o'clock of that day were returning to their home with a load of rails. The Wilson farm is on the north side of the road, and the yard fence came down a portion of the way into the road, as the defendant's witnesses claim it had been established and ordered opened. It appears that Wilson, the husband of the prosecutrix, in order to prevent a mudhole in front of his residence, had placed some posts out into the lines of the road. When the defendant and his brother came in front of the Wilson yard, the defendant, who was walking in front of the team which his brother was driving, began throwing the posts out of the road, so that the team with the load of wood or rails could pass through. The prosecutrix and her children testified that the first notice she had that the Ethridge boys were there was when she was notified by her daughter, and that she then came out on the porch and called to the defendant to let the posts alone; that the defendant failed to stop, and she went out into the road and continued to command him to let the posts alone; that he did not say anything, and she went to the gate, and just as she opened the gate the defendant jerked a piece of timber off of one of the posts, a two by four, about four feet long, and started towards her, and she warned him to stop, but he did not, and she told him the second time, and then she stooped down and picked up a piece of plank about three feet long, and, as she saw he was going to hit her, she threw up the plank to ward off his blow, and he hit the plank, and hit her on the head and knocked her down. She then testified that he then hit her with his fists in the face, when her son Joseph snapped a shotgun at the defendant, but it missed fire, and then the defendant desisted in striking her; that when he turned her loose she saw that he had a pistol, and he told her that if she did not go into the house he would blow her brains out. The fact that this row of posts in the road at this place had been a subject of conversation prior to this time appears from the defendant's examination. He says that while eating breakfast that morning his brother remarked to him that they would go to work on the place, the 40-acre tract, and said, "I want to bring back a load of rails," and remarked that the roads were awful, and did not know whether we could get through, and he (defendant) said that he (Wilson) had no right to put the posts in the road there; that it was a public road, and that he would throw them out; and the brother remarked, "I do not know as I would do it;" to which defendant replied: "I will throw them out, and if he comes out there we will have trouble. I might have said I would give him a thumping." There was much evidence pro and con as to whether the place where the posts were was a part of a public road, and whether Wilson's yard fence was on the line or in the road, and it seems to have been the theory of the defense that the posts were in the public road, and defendant had a right to keep it free from obstruction and open to travel, but while he was removing the posts Mrs. Wilson came out and made an attack upon him with a club, and that in the skirmish Mrs. Wilson struck the post and fell towards him. He denied striking her. Miss Cora Wilson, a daughter of the prosecutrix, corroborated her mother as to the fact that the defendant was the aggressor and knocked...

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11 cases
  • State v. Malone
    • United States
    • Missouri Supreme Court
    • 5 June 1931
    ...This was a disconnected difficulty between deceased and a third party, and was inadmissible. State v. Swearengin, 269 Mo. 177; State v. Ethridge, 188 Mo. 352; State v. Birks, 199 Mo. 263; State v. Woods, 124 Mo. 412; State v. Hanson, 231 Mo. 14; State v. Palmer, 281 Mo. 525; State v. Bostwi......
  • State v. Malone
    • United States
    • Missouri Supreme Court
    • 5 June 1931
    ...This was a disconnected difficulty between deceased and a third party, and was inadmissible. State v. Swearengin, 269 Mo. 177; State v. Ethridge, 188 Mo. 352; State Birks, 199 Mo. 263; State v. Woods, 124 Mo. 412; State v. Hanson, 231 Mo. 14; State v. Palmer, 281 Mo. 525; State v. Bostwick,......
  • State v. Perriman
    • United States
    • Missouri Supreme Court
    • 5 June 1944
    ... ... the jury against the defendant. State v. King, 174 ... Mo. 647; State v. Bobst, 131 Mo. 328; State v ... Fischer, 124 Mo. 460; State v. Young, 99 Mo ... 666; State v. Clancy, 225 Mo. 654; State v ... Clapper, 203 Mo. 549; State v. Ethridge, 188 ... Mo. 352; State v. Dixon, 253 S.W. 746; State v ... Hance, 256 S.W. 534; State v. Flores, 55 S.W.2d ... l.c. 955. (4) This being a charge of rape by a man over forty ... years of age upon a small girl alleged to be 12 years of age, ... tended to inflame the mind of the public against ... ...
  • State v. Mardino
    • United States
    • Missouri Supreme Court
    • 31 December 1924
    ...10; State v. Richardson, 194 Mo. 326, loc. cit. 341, 92 S. W. 649; State v. Kelleher, 201 Mo. 614, loc. cit. 636, 100 S. W. 470; State v. Ethridge, 188 Mo. 352, loc. cit. 358, 87 S. W. 495; State v. Swisher, 186 Mo. 1, loc. cit. 13, 14, 84 S. W. 911. The court therefore erred in admitting t......
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