State v. Johnson

• Decision Date: 17 February 1914
• Citation: 164 S.W. 209,255 Mo. 281
• Parties: STATE v. JOHNSON.
• Court: Missouri Supreme Court

164 S.W. 209

255 Mo. 281

STATE v. JOHNSON.

Supreme Court of Missouri, Division No. 2.

February 17, 1914.

1. HOMICIDE (§ 141)—ASSAULT WITH INTENT TO KILL—INDICTMENT.

An information for assault with intent to kill is not bad because charging that accused and others committed the assault with a knife which "they" held in their hands, thus alleging a physical impossibility.

2. CRIMINAL LAW (§ 1122)—APPEAL—QUESTIONS PRESENTED.

Alleged errors in the instructions cannot be reviewed, where the instructions are not in the transcript.

3. CRIMINAL LAW (§ 1110)—TRANSCRIPT.

Where the transcript has been filed, the instructions cannot be added to the bill of exceptions upon the certificate of the clerk of the trial court acting without the order of any court.

4. CRIMINAL LAW (§ 1064)—APPEAL—NEW TRIAL.

Objections to the admission of evidence cannot be reviewed, where the errors were not called to the attention of the lower court by the motion for new trial.

5. HOMICIDE (§ 257) — PROSECUTION — EVIDENCE.

In a prosecution for assault with intent to kill, evidence held to warrant a conviction.

Appeal from Circuit Court, Callaway County; David H. Harris, Judge.

Alfred Johnson was convicted of assault with intent to kill, and he appeals. Affirmed.

Upon a charge of assaulting with intent to kill one Paris Craighead, defendant was convicted in the circuit court of Callaway county and appeals from a judgment fixing his punishment at three years in the penitentiary.

The evidence upon which this conviction rests runs as follows: Craighead and three other white boys assembled in Callaway county on the night of August 18, 1912, to attend a dance. The dance did not materialize, so the four boys decided to attend a festival, held on the same night at a negro church a few miles distant. They arrived at the church about midnight, and, after tying their horses, sought to purchase some soda pop and fish at a stand outside the church. They could not obtain the soda pop and fish; the supply being exhausted. The white boys then walked to an open window of the church and were watching the negroes inside, some of whom were singing. At this juncture a bottle was thrown by some unknown person on the outside and struck the church window above where the white boys were standing, breaking the bottle, and also the glass in the window. Several persons came out of the church and demanded that the white boys pay for the broken window. This they declined to do, claiming they had not broken it. Some one or more of the negroes then told the white boys to leave, which they promptly did. There is some conflict in the evidence as to who told the white boys to leave; two witnesses testified that defendant gave the order.

Defendant was standing on the outside of the church when the bottle was thrown. Two of the white boys stated that the negroes told them to run, and they did run to their horses and prepared to go home. Paris Craighead did not run, but walked to his horse. According to his testimony about seven of the negroes followed him, and, as he was preparing to mount his horse, a negro by the name of Wheeler Dudley struck him in the back with a knife, inflicting a wound extending from his shoulder to his belt, about 17 inches long. Craighead stated that, just before this assault was made, defendant said to Dudley, "Rip him."

Defendant, testifying in his own behalf, corroborated the statements of Craighead at all points except in regard to the inciting remark, "Rip him," alleged to have been made by defendant to Dudley just before the crime was committed. Defendant stated that he and Pete Holland were standing about five feet from defendant when Wheeler Dudley passed between them and cut Craighead with a knife. Defendant further testified that it was a starlight night, and that after the assault took place he could see that Craighead's coat and shirt were "split open," and defendant thought he was wounded. Craighead was in fact very seriously wounded, but was able to mount his horse and ride away. Defendant denied that he said, "Rip him," to Dudley or encouraged said Dudley to make the assault; that he did not want to harm Craighead in any way; that he did not hear anybody say, "Rip him," but heard Dudley say, "I split his coat." Asked why he followed the white boys, defendant said, "I just went out there to see that they left."

Pete Holland's evidence was about the same as defendant's. He testified that he did not hear any one say, "Rip him," but that after the assault Dudley stated he had "split the white boy's coat."

One Julia Dudley testified in rebuttal that the day following the assault defendant called at her home, and, upon loaning her his knife to pare an apple, he (defendant) remarked, "That is the knife with which I cut the white boy's coat." Defendant denied making this remark, as did one other witness who was present when it is alleged to have been made.

For reversal defendant assigns the alleged invalidity of the information; the giving of improper instructions; the admission of improper evidence; and insufficiency of evidence to support the verdict.

N. D. Thurmond, of Fulton, for appellant. John T. Barker, Atty. Gen. (S. P. Howell, of ...