State v. Jones

• Decision Date: 05 June 1925
• Docket Number: No. 26150.,26150.
• Citation: 273 S.W. 730
• Parties: STATE v. JONES.
• Court: Missouri Supreme Court

273 S.W. 730

STATE v. JONES.

No. 26150.

Supreme Court of Missouri, Division No. 2,

June 5, 1925.

Appeal from Circuit Court, Buchanan County; W. H. Utz, Judge.

Lee Jones was convicted of assault with intent to kill, and he appeals. Reversed and remanded.

J. V. Gaddy, of St. Joseph, for appellant. Robert W. Otto, Atty. Gen. (Will F. Frank, of Kirksville, of counsel), for the State.

WALKER, P. J.

The appellant was charged by information in the circuit court of Buchanan county with an assault with intent to kill, and upon a trial to a jury was found guilty, and his punishment assessed at two years imprisonment in the penitentiary. From this judgment, he appeals.

One Mike Flaherty, on the 21st day of October, 1923, kept in the city of St. Joseph, what for euphony and by way of designation, is called a "soft drink parlor." On that day, Charles Fairbanks, the person assaulted, upon entering this place found the appellant and Flaherty in a quarrel over an unpaid bill of the former. Upon the entrance of Fairbanks, Flaherty handed him a 20-dollar bill which it appears was the property of the appellant, and asked him (Fairbanks) to go out and get change for it. As the bill was handed to Fairbanks, the appellant, prefacing his remark with a vile epithet, said to Fairbanks, "What have you got to do with it?" "Not a thing" said Fairbanks, "I was just trying to do you a favor." "Then" said the appellant with an oath, "Keep out of it." Fairbanks then handed the bill to the appellant who continued to curse him. The former finally said to the appellant, "If you don't stop this abuse I will knock you down." Fairbanks and Flaherty then walked to the other end of the counter, and while the former was standing with his back to the appellant, and in the act of handing an account he had against Flaherty to the latter for payment, the appellant rushed up behind Fairbanks, stabbed him several times and ran out of the room, followed by Fairbanks. The appellant, after running several blocks pursued by Fairbanks, was apprehended by the police and bystanders, and Fairbanks was prevented from assaulting him. An ambulance was called and Fairbanks was taken to a hospital where he remained for some time.

Upon an examination of Fairbanks' wounds by a surgeon, immediately after the assault, it was disclosed that he had a cut on his right side below the ribs through which his intestines were visible, and one on his left side below the ribs in the front part of his abdomen, and a cut on his left hand. The wounds were given attention by the surgeon, a Dr. Thompson, under whose care Fairbanks remained for about three weeks. The surgeon testified that the wounds were such as could have been inflicted by a sharp instrument. An open knife was identified as having been found in a fence corner at a point where the appellant had jumped over the fence while fleeing from Fairbanks. One witness testified that as the appellant passed her in his flight before he reached the fence, she saw a knife in his hand. When the appellant and Fairbanks were apprehended and the latter, weak from the loss of blood was being supported by bystanders, he said, "That is the man," indicating the appellant, "that cut me." The foregoing embodies the relevant portions of the testimony for the state.

Several witnesses testified to the former peaceable character of the appellant. His own testimony was substantially as follows:

"I was in Mike Flaherty's place on the night of October 31, 1923, talking with Flaherty. Fairbanks and two or three others were there when I came in. I had a conversation with Flaherty in the presence of Fairbanks. I ordered a couple of drinks and gave Flaherty a 20-dollar bill to pay for them. We got into an argument, and Flaherty said I didn't give him a 20-dollar bill, and Fairbanks stepped up and asked if I was trying to bulldoze Flaherty. I said, `No,' and asked him if he was running the place. He said, `No' and I then asked him what he was butting in for, and he said he would make it his business. Flaherty handed him the 20-dollar bill, and as he started out of the door with it I called to him, and told him not to leave with my money, unless I knew where he was going, and he said that he would knock me down. He said this a dozen times, and as he got to the front door and turned to go out, he applied a vile epithet to me, and struck me a little glancing blow behind my left ear, grabbed me by both arms and backed me over against the bar by the stove. I was facing the north while he was holding rue, and Mike started out from behind the bar, and I thought he had some kind of weapon in his hand. I had heard that Mike was a bad actor or a bad man, and that he would injure you or kill you, and I thought the best thing I could do was to get away from there to keep from being mobbed. Mike was coming in my direction, and I saw the only way was for me to get out without being murdered, and I cut Mr. Fairbanks, but had no intention of killing him. I was scared and I cut him to get loose, then ran and tried to get away. I ran several blocks and then they caught me. Fairbanks followed me. I ran because I was scared and afraid that Fairbanks and Flaherty were going to kill me. After Fairbanks turned me loose and I started to run, Flaherty threw something at me. After they caught me down in the alley and were holding me I heard Fairbanks say, `Let me get to him, I will kill the ____ ____ ____ ____.' I never got my 20-dollar bill back. Fairbanks had it the last time I saw it. I was over by the stove when I cut Fairbanks. He had me by both arms. He was stronger than I am and was able to hold me. I jumped over the fence trying to get away from him. I threw my knife away. The next morning after the trouble I told Capt. Duncan and Mr. Kirtley that I was drunk, and that I knew nothing about what occurred, and if I cut Fairbanks I didn't remember anything about it."

[] I. The giving of instruction No. 4 for the state is assigned as error. This instruction is as follows:

"(4) The court instructs the jury that if you " find and believe from the evidence that at the county of Buchanan and state of Missouri, on or about the 31st day of October, 1923, the defendant Lee Jones feloniously and on purpose assaulted the prosecuting witness Charles Fairbanks, and cut and stabbed him, with intent to kill the said Charles Fairbanks, or do him some great bodily harm, then you will find the defendant guilty of assault with intent to kill, and assess his punishment at imprisonment in the state penitentiary for a term of not less than two nor more than five years, or a term in the county jail not less than six months, or by a fine of not less than $100 and imprisonment in the county jail not less than three months, or by a fine of not less than $100.

"The word `feloniously,' as used in these instructions, means wickedly, and against the admonition of the law; that is, wickedly and unlawfully."

The infirmity of this instruction, as contended by counsel for appellant, is that while purporting to cover the entire case and to direct a finding, it does not embrace all of the issues and the law thereto applicable. This is not a question of first impression in this court. It was first adverted to somewhat incidentally in State v. McNamara, 100 Mo. loc. cit. 105, 13 S. W. 938, but in State v. Lentz, 184 Mo. loc. cit. 235, 83 S. W. 970, it was affirmatively held that an instruction is erroneous which purports to cover the whole case if it omits an essential element of the offense charged, and that the omission cannot be cured by a separate instruction defining the omitted element. Later, in State v. Helton, 234 Mo....