State v. Harris

• Decision Date: 18 February 1908
• Parties: STATE v. HARRIS.
• Court: Missouri Supreme Court

108 S.W. 28

209 Mo. 423

STATE v. HARRIS.

Supreme Court of Missouri, Division No. 2.

February 18, 1908.

1. HOMICIDE — ASSAULT WITH DEADLY WEAPON — ASSAULT WITH INTENT TO KILL — STATUTORY PROVISIONS.

Rev. St. 1899, § 1847 [Ann. St. 1906, p. 1277], provides for the punishment of every person who shall, on purpose and of malice aforethought, shoot or stab another, or assault or beat another with a deadly weapon, or by any other means or force likely to produce death or great bodily harm, with intent to kill, maim, or rob. Held that, under the statute, the shooting or stabbing another is one offense, while an assault with a deadly weapon is another and distinct offense, and hence, in an information charging the stabbing of another with intent to kill, allegations that the assault was committed "on purpose" and with "a deadly weapon" was surplusage and unnecessary.

2. SAME — ISSUES.

In a prosecution for assault with intent to kill, in which the information unnecessarily alleged that the assault was made on purpose and with a deadly weapon, it was not necessary for the court to submit to the jury the question whether or not the weapon was a deadly weapon as such fact was wholly immaterial.

3. CRIMINAL LAW — INSTRUCTIONS INVADING PROVINCE OF JURY — ASSUMPTION AS TO FACTS.

In a prosecution for assault with intent to kill, whether the instrument with which the assault was committed was a deadly weapon held, under the evidence, a question for the jury, and hence it was error to assume such fact in an instruction as to the presumption of law, arising from the use of a deadly weapon.

4. HOMICIDE — INSTRUCTIONS — SELF-DEFENSE.

In a prosecution for assault with intent to kill, an instruction that the possession of a pocket knife by accused was a circumstance which would warrant the jury in denying defendant the benefit of the law of self-defense was not error, where the evidence tended to show that defendant sought and brought on the difficulty, and had his knife in his hand at the time it began, and, without provocation, began at once to stab the prosecuting witness.

5. INDICTMENT — CONVICTION OF LESS OFFENSE.

Under the express provisions of Rev. St. 1899, § 2370 [Ann. St. 1906, p. 1458], on an indictment for assault with intent to commit a felony or for a felonious assault, the defendant may be convicted of a less offense.

6. HOMICIDE — ASSAULT WITH INTENT TO KILL — QUESTIONS FOR JURY.

In a prosecution for assault with intent to kill, whether the act was committed with malice aforethought, or with intent to kill or do some great bodily harm without malice aforethought, held, under the evidence, a question for the jury.

7. WITNESSES — CREDIBILITY — IMPEACHMENT — CROSS-EXAMINATION OF IMPEACHING WITNESS — DISCRETION OF COURT.

Though a liberal cross-examination should be allowed where a witness is called to impeach or sustain another by proof of general character, the extent to which it may go is largely within the discretion of the trial court.

8. CRIMINAL LAW — HARMLESS ERROR — EXAMINATION OF WITNESSES.

On the cross-examination of witnesses called to rebut evidence impeaching the character of prosecuting witness in a prosecution for assault with intent to kill, refusal to allow questions inquiring into the knowledge of the witness as to previous difficulties between the prosecuting witness and others was not error prejudicial to defendant, where defendant had called other witnesses who testified that the reputation of the prosecuting witness for quarrelsomeness was bad.

Appeal from Circuit Court, Lawrence County; F. C. Johnston, Judge.

John Harris was convicted of assault with intent to kill, and he appeals. Reversed and remanded.

Williams B. Skinner, for appellant. The Attorney General and N. T. Gentry, for the State.

GANTT, J.

On the 25th of February, 1907, the prosecuting attorney of Lawrence county filed an information, duly verified, charging that the defendant on the ____ day of January, 1907, in and upon one Joe Qualls, feloniously, on purpose and of his malice aforethought, with a deadly weapon, to wit, a knife, which he, the said Harris, in his hands then and there held, did then and there make an assault, and him, the said Qualls, feloniously, on purpose and of malice aforethought, did strike, cut, stab, and wound with said knife, with intent him, the said Qualls, then and there to kill, against the peace and dignity of the state. At the March term, 1907, the defendant was duly arraigned and entered his plea of not guilty and at the same term he was put upon his trial and found guilty as charged in the information, and his punishment assessed at two years in the penitentiary. From the sentence on that verdict he appeals to this court.

The evidence on the part of the state tends to prove that the prosecuting witness, Qualls, was the proprietor of a sawmill which he was operating near the farm owned by the defendant in Lawrence county, and the defendant's minor son had been working for the prosecuting witness at said mill. On the Saturday previous to the Tuesday on which the assault was made, the son of the defendant had quit work, and had complained to his father that Qualls had counted him out of a dollar in paying him his wages. The prosecuting witness testified that the defendant came to the mill on the day of the difficulty about 2 o'clock in the afternoon; that the prosecuting witness was very busy at the time sawing his lumber, but noticed the defendant in the millyard, but paid little attention to him except to see that he and one Smith walked off northeast from the mill; that, the next time he saw him, the defendant had come up to him into the small space in which he was working, and immediately assumed a threatening attitude, with his left fist up to the prosecuting witness' face, and said: "What do you mean by saying that you had broken even with Harris?" and he said, "What is the matter with you, Mr. Harris?" thereupon the defendant said: "You look me in the eyes (then called me a vile name), and tell me what you mean;" thereupon the prosecuting witness said: "If I have done or said anything, Mr. Harris, I did not mean a thing in the world," when he said that the defendant said: "You owe my boy a dollar," and the prosecuting witness said: "No, I paid your boy on Saturday night every cent I owed him, and you are a fool trying to raise a row with a man for nothing;" when the witness said that the defendant reached for him, caught hold of him with his left hand, and struck him with his right hand, and the witness immediately felt the cut of a knife, and says: "I either struck at him and run over him or shoved him down and run right over him, and started to run. I did not go but a few steps until I stumped my toe and fell, and he came right up on me with his knife, and I kicked at him with my foot, and he said, `Damn you, I will cut your throat,' and I called to Miller, and Miller came around and took hold of him. He had hold of my foot and was trying to cut over. When Miller took hold of him then defendant stopped, and I jumped up and ran again and went to Dr. Cottingham's office and had him dress my wounds — on my arm and left side." The witness further said that the defendant stabbed him in the side the first lick he gave him, and cut him on the arm as he started to run away from him. Dr. Cottingham testified that the prosecuting witness came to him for treatment that afternoon, and he discovered that the witness had a cut in the arm, which was bleeding profusely, and the doctor dressed this wound and sewed it up, and he also had a cut in the left side about the eighth rib. This last cut was about two inches deep and extended nearly to the cavity, the cut on the arm was 2½ inches long and went to the bone. The wounds had been very recently inflicted when the witness came to him. The witness was confined to his bed on account of these wounds for some seven or eight days. On cross-examination it appeared that the prosecuting witness had become acquainted with the defendant about the 1st of January, and this difficulty occurred on the 29th of January. The prosecuting witness had located his sawmill about one-half mile from the defendant's residence, and had been using the defendant's stable that month free of charge. The son of the defendant had been working for the prosecuting witness about a week before this difficulty with the consent of his father. The prosecuting witness was asked if he had not stated on the day before the difficulty that he had broken even with Harris, and he denied that he had ever made such a remark. He testified he was 39 years old, and weighed 175 pounds, and was 5 feet and 10 inches tall. On further examination, the prosecuting witness stated that the only expression he used in regard to breaking even was in settling with another son of the defendant's about the corn that he had used in feeding his team while there, and had made an arrangement with the Davis boys for his team, and said, when the Davis boys came up: "I am ready for my corn, I had an even break up at Harris', just an even break about the corn." Miller, a witness for the state, testified that he was at the mill when the defendant came there on the day of the difficulty, and the defendant asked him what Qualls meant by breaking even with the Harrises the evening before, and witness told him he did not know, unless he bought some corn from the Harris boys, and that he had some there; but the boys told him that he had taken it all up, and thereupon the defendant turned and walked away with James Smith. In about 10 or 15 minutes they returned, and he saw Harris go to where Qualls was working, and Smith went back to the engine. The defendant had a knife of some description in his right hand, and his right hand was hanging down. The defendant went to talking to Qualls, and had his right hand up close to Qualls' face. The defendant seemed to be out of humor, I could tell. They seemed to be...