State v. Hyder

• Decision Date: 26 May 1914
• Docket Number: No. 18060.,18060.
• Citation: 258 Mo. 225,167 S.W. 524
• Parties: STATE v. HYDER.
• Court: Missouri Supreme Court

167 S.W. 524

258 Mo. 225

STATE v. HYDER.

No. 18060.

Supreme Court of Missouri, Division No. 2.

May 26, 1914.

1. WITNESSES (§ 344)—IMPEACHMENT—PARTICULAR ACTS.

In a prosecution for assault with intent to kill, the court did not err in refusing to permit defendant to testify that the prosecuting witness swore falsely against him in another prosecution; the purpose being to prove that the prosecuting witness was untruthful.

2. HOMICIDE (§ 158)—EVIDENCE—ADMISSIBILITY.

In a prosecution for assault with intent to kill, the court properly permitted a state's witness to testify to threats made by accused against the prosecuting witness a year prior to the assault, since they had some probative force as tending to prove ill will and consequent motive for the assault.

3. CRIMINAL LAW (§§ 785, 786) — INSTRUCTIONS —CREDIBILITY OF WITNESSES.

In a criminal case, where defendant and his wife testified in his behalf, it was not error to instruct that, in determining the weight and credit to be given to their testimony, the jury might consider the fact "that he is the defendant, and that she is his wife, and the interest they have in the result of the trial."

4. CRIMINAL LAW (§ 1172)—APPEAL—HARMLESS ERROR—INSTRUCTIONS.

If such instruction were erroneous because singling out the testimony of a witness, it was not sufficiently prejudicial to work a reversal where the evidence of defendant's guilt was overwhelming.

Appeal from Criminal Court, Greene County; C. H. Skinker, Judge.

Ed Hyder was convicted of assault with intent to kill, and he appeals. Affirmed.

Convicted of the crime of assault with intent to kill, as denounced by section 4481, R. S. 1909, defendant appeals from a judgment fixing his punishment at five years in the penitentiary.

The information, which is legally sufficient, charges that defendant, with malice aforethought, shot at, with intent to kill, one Walter Abbott on May 21, 1912.

For several years prior to the commission of the alleged offense the defendant resided on a farm near Pearl Station in Greene county, Mo. During that time Walter Abbott, the prosecuting witness, resided on an adjoining farm owned by one W. R. Watson. More than a year before the assault a strong personal dislike sprang up between defendant and Abbott. About August, 1911, Abbott disturbed the peace of defendant by cursing and calling him vile names. For that offense, Abbott was prosecuted and fined. The fining of Abbott did not satisfy defendant, who seems to have wanted personal revenge. He (defendant) made numerous threats that he would settle with Abbott. Two days before the assault defendant admits that he voluntarily insulted and cursed Abbott at Pearl Station; but it appears that the presence of defendant's brother, Frank Hyder, averted any assault or fight at that time. The day of the assault defendant was on a train with W. R. Watson (appellant's landlord), coming from Springfield to Pearl Station, at which time defendant made several threats, concerning which witness Watson gave evidence as follows:

"Defendant said, `I give your baby a talking to the other day.' I says, `Who was that?' He says, `Walter Abbott.' I says, `He is no baby of mine; he is able to take care of himself.' He says, `He didn't do it the other day.' He says, `I called him everything I could think of, all the names I could think of, and he took it; he didn't take care of himself.' I says, `I wish you hadn't stirred that up.' He says, `You are harboring him under you; God damn you, you get rid of him and don't be long about it.' I says, `I am not harboring him; he is a gentleman, and he is trying to make a living for his family.' He says, `He is not a gentleman; he is a God damn s____ of a b____, and the man that harbors him is no better than he is.' He says, `You get rid of him and don't be long about it.' I says, `I can't get rid of him before the 1st of September; he is going to leave then, but you wouldn't be in any better shape then for he says he is going to rent Fred Staley's place.' Hyder says, `No, he ain't; we can't live that close together; this county is not big enough for us both.' I says, `He says he is. He says, `Now, God damn you, you get rid of him and don't be long about it.' He says, `Do you remember what I told you last spring?' I says, `What was that?' He says, `You remember about him cussing me that time at the store, and I told you to tell him that, if he didn't get right down on his knees in the dirt to me and make his acknowledgment, I was going to kill him.' I says, `I told him, and he never done it, did he?' He says, `No; but I will do it though.' He says, `This thing has got to be settled just as soon as the train comes into Pearl; we can't live together; God damn him, I am going to settle it as soon as the train gets into Pearl.'"

Charles Ross, who was on the train with defendant and Watson, corroborated Watson as to the threats made by defendant at that time.

On reaching Pearl Station witness Watson went immediately to the home of Abbott and informed Abbott's wife of the threats before detailed, whereupon Abbott's wife communicated the threats to her husband, who was working on the public road near by. She also delivered to her husband a revolver.

Abbott was working with five other persons on a road grader between Pearl and defendant's house. After remaining at Pearl Station about three-quarters of an hour, and making inquiry as to where he could find Abbott, defendant walked down to where the latter was at work.

The testimony of the five persons who were working with Abbott, as well as Abbott himself, is that, when defendant approached within about 20 steps of Abbott, he drew a revolver and said, "Get ready, you ____, I've come to kill you," and shot at Abbott. The shot went wild, and thereupon Abbott drew a revolver and shot defendant. The parties advanced towards each other and continued the shooting. When close enough defendant knocked Abbott's pistol out of his hand, and, as defendant's pistol would not fire any more, he threw it at Abbott. Defendant finally fell, and Abbott struck him several times on the head with a rock, and then voluntarily discontinued the fight. Abbott was not struck by any of the shots fired by defendant; but defendant was hit twice by Abbott's shots and was confined to his bed a week or more as the result thereof. There was a slight variance between the witnesses for the state as to the remark made by defendant just before he began shooting at Abbott; but their evidence in substance is identical.

Defendant, testifying in his own behalf, denied making any threats against Abbott, and further testified that he did not seek a difficulty with Abbott, but that Abbott began the attack and fired the first shot. The wife and daughter of defendant, who were about a half of a mile away and could not see the parties, gave evidence to the effect that they heard the shots and saw the smoke of the pistols, and that said smoke indicated that Abbott began the shooting.

For reversal, defendant asserts that competent evidence for defendant was excluded, improper evidence for the state admitted, and an improper instruction given on behalf of the state.

Perry T. Allen, Charles J. Wright, and Edward M. Wright, all of Springfield, for appellant. John T. Barker, Atty. Gen., and Thomas J. Higgs, Asst. Atty. Gen., for the State.

I. Veracity.

BROWN, J. (after stating the facts as above).

Defendant contends that the court erred in refusing to allow him to testify that Walter Abbott, the prosecuting witness, swore falsely against defendant in another prosecution. The court did not err in excluding this evidence. While it might have tended to prove that Abbott was unfriendly to defendant, its main purpose was to prove that Abbott was untruthful, which could not be shown by specific untruthful statements. No effort was made to prove that Abbott had the reputation among his neighbors of being untruthful. State v. Gesel, 124 Mo. 531, 535, 27 S. W. 1101; and Wharton on Criminal Evidence (10th Ed.) § 486.

II. Threats.

Another contention of defendant is that the court erred in allowing witness Alexander to testify to threats made by defendant against Walter Abbott a year prior to the commission of the crime of which defendant was convicted. We are not cited to any rule of law which would render this testimony incompetent. A threat of personal violence made long prior to the alleged assault was not as strong proof of malice as one made on the day of the assault; but it undoubtedly had some probative force as tending to prove ill will and a consequent motive for making the assault. State v. Adams, 76 Mo. 355, loc. cit. 357; State v....