State v. Gabriel

• Decision Date: 03 December 1923
• Parties: THE STATE v. JOHN GABRIEL, Appellant
• Court: Missouri Supreme Court

256 S.W. 765

301 Mo. 365

THE STATE v. JOHN GABRIEL, Appellant

Supreme Court of Missouri

December 3, 1923

Appeal from Greene Criminal Court; Hon. Orin Patterson Judge.

Reversed and remanded.

O E. Gorman and Allen & Allen for appellant.

(1) The information may be good under Section 3264 if the case had been tried under that theory and section, but Instruction 1 which is the main instruction given by the court, and purports to submit all the issues and direct a finding, clearly shows that the case was tried under Section 3263. The information under that section is insufficient in that it fails to charge any intent. State v. Norman, 136 Mo. 1. (2) If it is the contention of the State that the information is good under that section, then the court failed to submit the issues raised by the information by submitting the issue entirely upon Section 3263. The court fatally erred in so doing as an indictment or information must stand on its own bottom and cannot be supported or propped up by instructions which submit issues not raised by the pleadings. State v. Hesseltine, 130 Mo. 475; State v. Smith, 119 Mo. 447. (3) An instruction cannot outrun the indictment, and the court had no right to submit an issue not tendered by the information. State v. Faulkner, 175 Mo. 546; State v. Lehman, 175 Mo. 619, 630; State v. Brotzer, 245 Mo. 299. (4) Under an information for one crime an instruction must not embody another, and if it does so it is a fatal departure from the pleadings and is bad. State v. Young, 266 Mo. 724; State v. Hardiman, 277 Mo. 234. (5) Where an information charged assault with intent to kill, and the instructions submitted the question whether the accused was guilty of assault with intent to kill or to do great bodily harm, it was error and not cured by a verdict finding the accused "guilty as charged in the information," for it cannot be affirmed that the jury was not misled. State v. Littler, 186 S.W. 1045. (6) Instruction 1, being the court's own instruction and purporting to cover the whole case and directing a finding, must embrace all the issues and the law applicable to them, and if it omits the element of self-defense raised by the pleadings and evidence, it is error. That omission is not cured by another instruction defining self-defense and asserting defendant's right thereto. State v. Helton, 234 Mo. 559; State v. Graves, 185 Mo. 713; State v. Lentz, 184 Mo. 223; Dameron v. Hamilton, 264 Mo. 116; State v. Wicker, 222 S.W. 1014.

Jesse W. Barrett, Attorney-General, and J. Henry Caruthers, Assistant Attorney-General, for respondent.

(1) The information is sufficient. Sec. 3264, R. S. 1919; State v. Bailey, 21 Mo. 488; State v. Bohannon, 21 Mo. 491; State v. Moore, 65 Mo. 606; State v. Agee, 68 Mo. 264; State v. Janke, 248 Mo. 380. (2) While it is true instruction numbered one uses the expression: "and that such assault was made by defendant with intent to kill or do great bodily harm," the jury found "defendant guilty in manner and form as charged in the information," etc. The charge is felonious shooting and wounding with an automatic pistol, which endangered the life of Gordon Pierce. This instruction required the jury to find that the pistol was used with the intention to kill or do great bodily harm. These expressions "to kill or do great bodily harm' are each tantamount to "endangering the life" of one, and cast an additional burden on the State before the defendant could be found guilty. The jury was not and could not have been misled. There was only one single assault charged with only one single result, namely, "endangering the life" of the prosecuting witness. Appellant has suffered no injury by the giving of this instruction in this form. State v. Bunyard, 253 Mo. 356; State v. Chauvin, 231 Mo. 37. (3) Appellant objects to this instruction, because it does not declare the law of self-defense. Self-defense is not "an essential element of the offense" defined by the statutes. State v. Lentz, 184 Mo. 235. It is a matter of defense and may and should be submitted in a separate instruction. State v. Wicker, 222 S.W. 1016.

OPINION

David E. Blair, J.

Defendant was convicted in the Criminal Court of Greene County of the crime of assaulting and wounding one Gordon Pierce with an automatic pistol, thereby endangering his life. Trial by jury resulted in a verdict of guilty as charged, and punishment by imprisonment in the county jail for twelve months and by a fine of one hundred dollars. After moving unsuccessfully for a new trial and in arrest of judgment, defendant was duly sentenced upon such verdict and thereafter appealed. This court has jurisdiction of the case because the conviction was for a crime punishable by imprisonment in the penitentiary, even though such punishment was not imposed by the jury. [State v. Woodson, 248 Mo. 705; State v. Underwood, 254 Mo. 469.]

A careful reading of the record has resulted in the conclusion that the facts immediately attending the difficulty, both from the viewpoint of the State and from the viewpoint of defendant, are fairly set forth in the statement of facts in the brief of the learned Attorney-General, from which we quote as follows:

"The evidence introduced on behalf of the State tended to prove the following:

"On the morning of December 2, 1921, in Greene County, Missouri, N.W. Pierce and his son, Gordon, were working about the house of the older Pierce, and defendant, John Gabriel, drove up in a wagon in front of the house and stopped and began making signs with his hand up to his face. The Pierces were about thirty feet from the road where defendant was. Gordon Pierce, the son, observing this conduct on the part of defendant, told him to drive on down the road, whereupon the defendant said, 'God damn you, I don't have to, I own as much of this road as you do,' and pulled back his sweater and ran his hand into his pocket. Gordon Pierce then picked up a rock and threw it at defendant and hit him about the top of the hip. Defendant then climbed over the front of the wagon and stepped down on the ground. He then put his left hand upon the wagon body and the other hand over it and began shooting into the Pierce yard, which resulted in striking Gordon Pierce three times. Five or six shots were fired. Two shots struck Gordon in the right leg and one in the other knee. The bullets penetrated entirely through the leg. The wounds were dressed and treated by Dr. Arthur Knabb. Two of the shots went past him about the level of his head back toward his father and uncle, who were just back of him.

"It appeared that the Pierces and defendant were unfriendly and had had difficulty prior to this time about a road which crossed a part of the Pierce land, and about Pierce's stock bothering defendant, which the defendant put up and refused to release until he was paid for his trouble in doing so; and that the defendant made serious threats at various times towards the Pierces. It also appears in evidence that the defendant had been carrying a pistol prior to this time as result of the feeling existing between them, which fact was known to the Pierces. The pistol was a thirty-two automatic Colts, and held nine shots.

"The evidence offered on behalf of the defendant tended to prove the following:

"On the morning of the shooting defendant had been to a neighbor's with his wagon, and team and about ten o'clock, while on his way back, when he got to the corner of the Pierce yard, he saw old man Pierce and his son, Gordon, and a man by the name of Thompson, who was Pierce's brother-in-law, out at the corner of the house, talking, and Gordon was looking at the defendant with a very hard stare, and then started to head him off in front of the house. When Gordon got within three or four feet of the fence he stopped and picked up three rocks and said, 'You get down in the road, you God damn son-of-a-bitch, and I will knock you God damn head off.' He then threw a rock and just missed defendant's head, and threw other rocks just as fast as he could. Thompson got ahead of the horses when defendant started to get his horses and dodged a rock, and Gordon threw another time and hit the horses, and then he hit defendant on the hip. Defendant then tumbled out of the wagon over the front wheel. He had his pistol in a belt and holster in his overalls, but did not draw or attempt to draw it until he was knocked out of the wagon and was still being thrown at. He then reached up and got hold of his wagon and pulled himself up and drew his gun and turned it into Gordon's legs, shooting at him, but not trying to kill him. At that time Gordon had thrown five rocks and had another up ready to throw when defendant shot. Defendant shot six times from a thirty-two Colts automatic, which held nine shots, but had only six in it at the time. After emptying the pistol defendant took hold of the wagon with the hand that had the pistol in it, and the lines with the other, and started on up the road toward his home, which was only a short distance from the Pierces."

Previous threats of the Pierces and of the defendant were shown. A state of bad feeling had existed between them for some time. The familiar array of character witnesses was used, both by the State and the defendant, to show that defendant's reputation for truth and veracity was good or bad, depending apparently on the state of feeling of the various witnesses toward defendant and the Pierces. The issue of the character of Gordon Pierce and his father extended to their reputations for turbulence, quarrelsomeness, etc., as well as for truth and veracity. The usual division of opinion appeared and left the issue in such shape that the jury might well have declared a draw.

I. The sufficiency of the information is assailed. ...