State v. Harris

• Decision Date: 04 December 1906
• Citation: 98 S.W. 457
• Parties: STATE v. HARRIS.
• Court: Missouri Supreme Court

98 S.W. 457

STATE v. HARRIS.

Supreme Court of Missouri, Division No. 2.

December 4, 1906.

1. HOMICIDE—ASSAULT WITH INTENT TO KILL —INFORMATION.

An information charging defendant with an assault on one S. with the intent him, the said S., on purpose and of his malice aforethought, feloniously to kill and murder, was sufficient.

2. CRIMINAL LAW—TRIAL—OBJECTIONS—SUFFICIENCY.

An objection to evidence without stating any grounds is insufficient.

3. SAME—TIME FOR OBJECTION.

A party cannot sit by and allow a question to be answered and then object in case the answer does not suit him.

4. HOMICIDE—ASSAULT WITH INTENT TO KILL —SIMPLE ASSAULT—INSTRUCTIONS.

On prosecution for an assault with intent to kill it appeared that defendant, in company with others, was in the yard of the prosecuting witness; that the prosecuting witness came out on his porch when some words passed between him and defendant, when witness retreated into his house, while defendant drew his gun and opened the door and, after striking witness on the head, shot him. Held, that an instruction on common assault was not justified.

Appeal from Circuit Court, St. Francois County; Robt. A. Anthony, Judge.

Frank Harris was convicted of assault with intent to kill, and appeals. Affirmed.

The Attorney General and N. T. Gentry, for the State.

GANTT, J.

This is a prosecution commenced by the filing of an information by the prosecuting attorney of St. Francois county, in the office of the clerk of the circuit court in vacation, on the 22d day of September, 1903, wherein he charged the defendant with an assault upon one James Stout, with the intent him, the said Stout, on purpose and of his malice aforethought, feloniously to kill and murder. The information was duly verified, and the defendant was arrested and the cause continued until the 2d day of August, 1904, at which time the defendant was duly arraigned and entered his plea of not guilty, and he was put upon his trial and convicted and his punishment assessed at five years' imprisonment in the penitentiary of this state. After unsuccessful motions for a new trial and in arrest of judgment, the defendant was sentenced in accordance with the verdict of the jury. From that verdict and judgment, he appeals to this court. Time was granted the defendant within which to file his bill of exceptions, and, in obedience to the leave granted, the defendant did, on the 29th of December, 1904, file his bill of exceptions.

The evidence tends to prove, on the part of the state, that the defendant was a barber by occupation and lived in Ironton, and the prosecuting witness, James Stout, lived in Iron Mountain, St. Francois county. For some months prior to the difficulty, the relations between the defendant and the prosecuting witness had been unfriendly. The prosecuting witness, it seems, thought that the defendant had been too intimate with the prosecuting witness' wife. It seems that the defendant on one occasion brought Stout's wife home in a buggy, and a considerable difficulty occurred between the defendant and Stout. Afterwards, and on Sunday morning September 20, 1903, the defendant came to the home of Stout in Iron Mountain, in company with Andrew Langley and Fred Stout, a son of the prosecuting witness. These three brought a case of beer with them, and located themselves in Stout's yard from about 11 o'clock in the forenoon until 4 or 5 in the afternoon. During this time they consumed most of the beer. Indeed, the evidence tends to show that they replenished the supply twice during the day. During their stay in the yard of the prosecuting witness, his wife went out on the porch and talked with the defendant for a considerable time, took some of his bottles of beer and put them in a tub of ice water, and from time to time she took the beer out to the defendant and the others who were with him, and she also invited the defendant to come in and take dinner with them, but the defendant declined this invitation saying he had money enough to buy his dinner. About noon, the defendant sent off to a restaurant and bought some cheese and crackers, which he ate out in the yard. During the day defendant got a chair and a pair of scissors and trimmed the hair of Mr. Langley, his companion. During all this time, the prosecuting witness, Stout, remained in his house, and did not go out to see, and did not speak to, the defendant. Langley left, and one Frank Postelwaite came up and he was invited by the defendant to drink some of the beer, which he did. The evidence then tends to show that, about 4:30 o'clock in the afternoon, Stout, the prosecuting witness, who was still in the house, directed his son, Charley, to go out to the wood pile and bring in some stove wood. The boy replied he did not want to go, and there was no wood cut, thereupon Stout told him to cut some, and ran towards the boy, and on to the porch, kicking his son as he jumped off of the porch. Defendant who was still in the yard, looked up, and Stout asked him what he had to say about it, to which defendant replied: "Who are you talking to?" To which Stout answered, "I am talking to you, G____ d____ you." Defendant called to Stout not to get his gun, at the same time raising up out of his chair and drawing his revolver. Stout retreated into the house and shut the door behind him. Defendant opened the door and struck Stout on the head with something, he could not tell what it was. Defendant then fired his pistol at Stout, the ball taking effect in the left shoulder three inches below the point of the shoulder and ranging upward. The weapon used by the defendant was a 44 caliber Smith and Wesson pistol. After wounding Stout, the defendant walked out in the yard, and Stout got his gun and fired twice at the defendant. The gun was loaded with squirrel shot, and both loads took effect in the defendant. The defendant fell, but soon got up and returned to...