State v. Headrick

• Citation: 179 Mo. 300,78 S.W. 630
• Parties: STATE v. HEADRICK.
• Decision Date: 01 February 1904
• Court: United States State Supreme Court of Missouri

78 S.W. 630

179 Mo. 300

STATE v. HEADRICK.

Supreme Court of Missouri, Division No. 2.

February 1, 1904.

TRIAL ON TWO COUNTS—ACQUITTAL ON ONE COUNT BAR TO CONVICTION ON THE OTHER.

1. The first count of an indictment charged an assault on H. with a deadly weapon, a knife, with intent to kill; concluding that defendant then and there with such deadly weapon stabbed and cut H., with intent to kill. The second count charged that defendant, with a deadly weapon, a knife, made an assault, and cut and disabled the hand and arm of H., with intent to kill. Held, that the essence of the offense charged in the two counts was the same, so that the acquittal of the defendant on the first count was a bar to his conviction on the second, though at the same time a verdict of guilty on that count was returned.

Appeal from Circuit Court, Cape Girardeau County; H. C. Riley, Judge.

Elijah Headrick appeals from a conviction. Reversed.

Wilson Cramer, for appellant. The Attorney General and C. D. Corum, for the State.

FOX, J.

Appellant was convicted upon the second count of the indictment in the circuit court of Cape Girardeau county, and his punishment assessed at imprisonment in the penitentiary for the term of five years. The indictment, containing two counts, is as follows:

"The grand jurors of the state of Missouri, duly impaneled, sworn, and charged to inquire within and for the county of Cape Girardeau, state aforesaid, on their oath, present and charge that Lige Headrick, of said county and state, on or about the 23d day of June, A. D. 1901, in and upon the body of one August Holliday, then and there being, feloniously, on purpose, willfully, and of his malice aforethought, with a deadly weapon, to wit, a knife, which he, the said Lige Headrick, then and there in his hand had and held, did then and there make an assault, with intent, then and there, him, the said August Holliday, feloniously, on purpose, willfully, and of his malice aforethought, to kill and murder, and he, the said Lige Headrick, with deadly weapon aforesaid, him, the said August Holliday, then and there, willfully, feloniously, on purpose and of his malice aforethought, did stab, strike, cut, penetrate, bruise, and wound, with the intent, then and there, with the deadly weapon aforesaid, him the said August Holliday, willfully, on purpose, and of his malice aforethought, feloniously to kill and murder, contrary to law and against the peace and dignity of the state.

"And the grand jurors aforesaid, impaneled, sworn, and charged as aforesaid, on their oath aforesaid, do further find, present, and charge that Lige Headrick, at the county of Cape Girardeau, state of Missouri, on or about the 23d day of June, A. D. 1901, in and upon one August Holliday, on purpose and feloniously, did make an assault, and the said Lige Headrick, with a deadly weapon, to wit, with a knife, the right hand and arm of the said August Holliday on purpose and of his malice aforethought, unlawfully and feloniously, then and there did cut and disable, with the intent him, the said August Holliday, then and there and thereby, on purpose and of his malice aforethought, unlawfully and feloniously to kill and murder, contrary to law and against the peace and dignity of the state."

The facts shown by the evidence are substantially as follows: Both the defendant and the prosecuting witness, August Holliday, are boys; the one being in his nineteenth, and the other in his seventeenth, year at the time of the difficulty, on June 23, 1901. They were entire strangers to each other, and met for the first time on the afternoon of Sunday, June 23, 1901, at a sawmill situated a short distance southeast of the city of Jackson. This mill was between the railroad which runs north in the valley, and a public road running parallel with the railroad, and crossing it a short distance north of the mill, where it connects with a street. Starting at the mill, and going north along the track of the railroad the objects mentioned in the testimony are as follows: After passing the point where the public road just mentioned crosses the track, the first object is the office of the tiling factory, on the right-hand or east side; next, the water tank, on the left; a little beyond this, the crossing of the Jackson Gravel Road, which comes from the east; next, on the right, the flouring mill; and immediately opposite, on the left, the elevator. Some distance further, on the same side, the house spoken of as the "Obermiller House"; and beyond this, on the right, the beer depot, which is a considerable distance north of the mill. The railroad has a side track, which leaves the main track somewhere north of the flouring mill, and, passing on the east side of the mill, going south, crosses the Jackson Gravel Road between an iron bridge on that road and the residence of Mr. Al. Rice, situated on the south side of the gravel road, and but a short distance from it. After the gravel road crosses the railroad track, just north of the water tank, it turns to the right, going up an incline, and connects on the ridge with a street running north, parallel with the railroad; and on the east side of this street, between it and the railroad, is the elevator. At the intersection of this street with one running west, and nearly opposite the elevator, is the residence of Dr. Koehue; immediately opposite Dr. Koehue's is the Turners' Hall; and going west on the street just mentioned the Catholic church is passed two blocks from Dr. Koehue's corner. From this corner to Sibley's Restaurant it is nearly four blocks. On Sunday afternoon, June 23, 1901, there was a beer-drinking at the sawmill, at which a number of young men and boys had congregated. Among them were the defendant and the prosecuting witness, August Holliday, who participated in the festivities of the occasion. Some time late in the afternoon defendant and Dan Peyton were in the water-closet together, and were talking about John Headrick, the brother of defendant, who was executed for murder about two years before. About this time Holliday came into the closet, and made the remark, "Yes; John was all right, but he got his damned clock fixed." Defendant said to him that he should not "throw up his brother John to him; that he did not like to hear it." It seems, Holliday kept on talking, and finally defendant told him that, if he did not shut up, he would make him do so. About this time they stepped out of the water-closet, and defendant drew from his pocket a knife and struck at Holliday; but whether the knife was open or closed, does not appear. The prosecuting witness himself says he does not know. At all events, no wound was inflicted. The lick merely grazed the side of Holliday, who jumped away, and, arming himself with a club, was about to enter into active operations, when others ran in and separated the boys. Mr. Loos, the owner of the sawmill, put Holliday out into the public road, on the east side of the mill, and directed defendant to go away. Holliday stood out in the road, challenging defendant to come out and settle the matter. Defendant, however, did not go, but remained at the mill about half an hour, when he and two other boys—Wm. Niblack and Sherman Daly—started to go up into the city. They got outside of the mill inclosure onto the railroad track, walked north on the track past the tiling factory and the water tank, and then went uptown, passing between Dr. Koehue's and the elevator, past the Catholic church, to Sibley's Restaurant. They remained there a short time, and then defendant and Wm. Niblack started home. Niblack lived a mile east of town, immediately on the gravel road; and defendant, on the Bainbridge Road, which enters the gravel road at the Niblack residence. The proof tends to show that after the defendant and his companions, Niblack and Daly, had gone up the railroad track on their way uptown, Holliday, as he passed the tiling factory, going north on the railroad, made the remark that he intended to kill the damned son of a bitch. As stated, defendant and Niblack started home from Sibley's Restaurant. They came down the way they had gone up, and when they got to Dr. Koehue's they met Holliday, who was coming up toward town. Holliday renewed the difficulty with defendant, and seemed determined to fight. Defendant told him he did not want any trouble with him; that he should go away and leave him alone. Holliday was heard to say, "You drew your knife on me, but I am not afraid of you," and was seen to draw back his club in a striking attitude, and defendant was noticed patting his pocket with his hand. About this time, Wm. Cunningham, who was down on the railroad track, called to defendant to come to him, and defendant immediately went to where Cunningham was. Niblack and Holliday also went down to the railroad track. Cunningham told defendant to leave Holliday alone, and go on up the railroad track and go home. He immediately started north on the railroad track, and got as far as the beer depot, where he met and talked to a negro, Bud Thomas. Holliday was seen coming up the railroad towards the beer depot, still carrying his club. Defendant then went around the beer depot, got on a side track, and walked south towards the mill, and, without stopping, passed on to the gravel road, which was his direct route home; getting on the gravel road just in front of Al. Rice's house. By the time he got there, Holliday, who had turned and followed as soon as he saw defendant going south, and was seen running, caught up with defendant, and renewed the difficulty. Mr. Rice came out, and ordered them away. Defendant and Niblack, who had come up with Charley Daly, another boy started east on the gravel road towards home, and crossed the bridge. Daly, who was behind with Holliday, tried to keep him from following, and wanted him to go back, but he would not do so. He still had his club, and insisted on going; and he and Daly then started east on...