State v. Foley

• Decision Date: 02 February 1909
• Parties: STATE v. FOLEY.
• Court: Missouri Supreme Court

119 S.W. 397

220 Mo. 86

STATE v. FOLEY.

Supreme Court of Missouri, Division No. 2.

February 2, 1909.

Rehearing Denied May 18, 1909.

1. HOMICIDE (§ 300)—ASSAULT WITH INTENT TO KILL—EVIDENCE—INSTRUCTIONS.

Where, on a trial for assault with intent to kill with a pistol, there was evidence that the pistol was fired by accident, while an officer sought to take accused to the police station, and that the officer struck accused with the pistol as they walked towards the station, an instruction that, if the pistol was accidentally discharged while the officer and accused were scuffling and accused did not shoot at the officer, accused must be acquitted, sufficiently covered the defense.

2. CRIMINAL LAW (§ 1048)—RULINGS— EXCEPTIONS—REVIEW.

A party desiring the appellate court to review the action of the trial court must make his objections in the trial court, and save his exceptions to the overruling thereof, and then call the attention of the trial court to such error in his motion for a new trial, and save his exceptions to the overruling thereof.

3. CRIMINAL LAW (§ 1064)—MOTION FOR NEW TRIAL — ASSIGNMENT OF ERROR—SUFFICIENCY.

An assignment in the motion for a new trial that the court failed to fully and properly instruct the jury as to the law in the case is not an exception to the instructions given, but goes to the failure to instruct on points not covered by the instructions.

4. CRIMINAL LAW (§ 1064)—NEW TRIAL— GROUNDS—REVIEW.

The right of accused to a new trial for error in the instructions, newly discovered evidence, and improper remarks by the prosecuting attorney not assigned in the motion for a new trial cannot be considered on appeal.

Appeal from St. Louis Circuit Court. Toney Foley was convicted of an assault with intent to kill without malice aforethought, and he appeals. Affirmed.

C. Orrick Bishop and Henry M. Walsh, for appellant. Herbert S. Hadley, Atty Gen., and Frank Blake, Asst. Atty. Gen., for the State.

GANTT, P. J.

On February 13, 1907, the circuit attorney for the city of St. Louis filed an information against the defendant in the circuit court of the city of St. Louis charging him with having on the 9th of February, 1907, at the city of St. Louis, committed an assault, with malice aforethought and with a deadly weapon, a pistol loaded with leaden balls and gunpowder, upon Patrick Stapleton, with intent then and there him, the said Stapleton, feloniously, willfully, on purpose, and of his malice aforethought to kill. The defendant was duly arrested, arraigned, and put upon his trial, and convicted of an assault with intent to kill without malice aforethought, and his punishment assessed at five years' imprisonment in the penitentiary. Having been sentenced on this verdict, the defendant has appealed to this court.

The evidence tended to prove that on the night of February 9, 1907, the defendant and eight or ten companions came out of a saloon at Twenty-Third and Franklin avenues, in the city of St. Louis, about twelve o'clock, and the party were swearing and cursing, and Stapleton, a police officer, ordered them off of the corner, and they moved to the opposite corner and renewed their wrangle. Stapleton again ordered them to desist and to move on. One of the crowd inquired of the officer if he intended to lick them, and he replied he only desired to get them off of the street, and, as he said this, defendant struck him about the ear and knocked him down, and, while he was down, others of the crowd kicked him. He then drew his pistol and fired twice, but did not strike any of them. They ran, and he pursued and caught defendant, and placed him under arrest, and, with his revolver in his hand, started with him to the station, followed by the other members of the party. After having gone a short distance one of the defendant's companions...