State v. Keener

• Decision Date: 12 February 1910
• Citation: 225 Mo. 488,125 S.W. 747
• Parties: STATE v. KEENER.
• Court: Missouri Supreme Court

125 S.W. 747

225 Mo. 488

STATE v. KEENER.

Supreme Court of Missouri, Division No. 2.

February 12, 1910.

1. HOMICIDE (§ 141) — ASSAULT WITH INTENT TO MURDER — INFORMATION — SUFFICIENCY.

An information for felonious assault, which alleges that accused in and upon prosecutor "feloniously, on purpose and of his malice aforethought, did make an assault, and then and there, on purpose and of his malice aforethought, feloniously assault" and stab prosecutor with a knife with intent to murder, is sufficient as against the objection that the word "did" is omitted between the words "and" and "then" in the quoted phrase, for the word "did," used in immediate connection with the charge of assault, is carried in meaning into connection with the following clause.

2. INDICTMENT AND INFORMATION (§ 140) — MOTION TO QUASH — WANT OF PRELIMINARY EXAMINATION — EVIDENCE.

A motion to quash an information for want of a preliminary examination required by Laws 1907, p. 243, raises a question of fact, and, in the absence of evidence of a want of preliminary examination, the motion is properly quashed.

3. CRIMINAL LAW (§ 1149) — MOTION TO QUASH — DISCRETION OF COURT — REVIEW.

Generally the court's discretion in overruling a motion to quash an information will not be reviewed.

4. HOMICIDE (§ 141) — ASSAULT WITH INTENT TO MURDER — STATUTES — CONSTRUCTION.

Under Rev. St. 1899, § 1847 (Ann. St. 1906, p. 1277), providing that every person who shall on purpose and of malice aforethought shoot at or stab another or assault another with a deadly weapon shall be punished, a felonious stabbing of another with intent to kill is an offense, and, where the assault is charged to have been made with a certain knife, it is not necessary to charge that the knife was a deadly weapon.

5. HOMICIDE (§ 292) — ASSAULT WITH INTENT TO KILL — EVIDENCE — INSTRUCTIONS.

Where, on a trial for felonious assault with a knife, the evidence showed that the wounds inflicted were dangerous, and that prosecutor was confined to his bed four weeks on account thereof, receiving medical attention during that time, a charge that one, who intentionally used on another at some vital point a knife, a deadly weapon, must, in the absence of qualifying facts, be presumed to know that the effect was likely to be death and would be presumed to intend death as the ordinary consequence, etc., was not erroneous.

6. CRIMINAL LAW (§ 829) — REFUSAL TO GIVE INSTRUCTIONS COVERED BY CHARGE GIVEN.

It is not error to refuse instructions fully covered by the charge given.

7. WITNESSES (§ 277) — CROSS-EXAMINATION OF ACCUSED — EXTENT.

The cross-examination of accused testifying in his own behalf need not be confined to a mere categorical review of the matters stated in the direct examination, but the same may be employed as a means to test the truth of the evidence given in the direct examination.

8. WITNESSES (§ 277) — CROSS-EXAMINATION OF ACCUSED — EXTENT.

Where accused in his direct examination testified that a third person visited him in jail and made a slight examination of his wounds and gave him some liniment therefor, questions on cross-examination as to whether accused told the third person that he was not hurt much, and as to whether accused did not walk on his hands and feet at the time of the examination were not improper.

9. CRIMINAL LAW (§ 958) — NEW TRIAL — NEWLY DISCOVERED EVIDENCE — AFFIDAVITS.

The affidavits in support of a motion for new trial on the ground of newly discovered evidence must show that the evidence has come to the knowledge of accused since the trial, that it was not owing to his want of due diligence that he did not discover it sooner, that the evidence is so material that it will probably produce a different result on a new trial, that it is not cumulative only or merely impeaching the credit of a witness, and the affidavit of the newly discovered witness must be produced or its absence accounted for.

10. CRIMINAL LAW (§ 945) — NEW TRIAL — NEWLY DISCOVERED EVIDENCE — PROBABLE EFFECT.

Where, on a trial for felonious assault, the witnesses for accused detailed all that occurred during the fight, and none of them testified that the prosecutor had a knife, though they were close by during the fight, a motion for new trial on the ground of newly discovered evidence, consisting of the testimony of a witness that on the morning after the fight he picked up two knives, one of which belonged to prosecutor, was not erroneous, because the newly discovered evidence would not probably change the result.

Appeal from Circuit Court, Christian County; Jno. T. Moore, Judge.

Jesse F. Keener was convicted of assault with intent to kill, and he appeals. Affirmed.

G. Purd Hayes, for appellant. E. W. Major, Atty. Gen., and Jas. T. Blair, Asst. Atty Gen., for the State.

BURGESS, J.

At the February term, 1909, of the circuit court of Christian county, upon an information charging him with having made a felonious assault upon one Barney Gregory, with intent to kill him, the defendant was found guilty of said offense, and his punishment assessed by the jury at two years in the penitentiary. In due time motions for new trial and in arrest of judgment were filed. The motion in arrest was overruled; but, while the bill of exceptions recites that the motion for new trial was overruled, the record does not show that there was any order overruling the same. Defendant was sentenced upon the verdict, and appealed to this court.

The evidence for the state was, in substance, as follows: On the night of November 2, 1908, a political "rally" was held in a skating rink in the town of Billings, in Christian county. Defendant and the prosecuting witness, Gregory, attended said "rally"; both at the time being somewhat under the influence of intoxicants. They exchanged "hurrahs" for their respective candidates; each making use of remarks derogatory to the other's political favorite. The meeting being over, they repaired to the sidewalk in front of the skating rink, where words of anger passed between them. The defendant shoved Gregory away from him, whereupon Gregory struck the defendant. The latter then struck Gregory with a knife, and Gregory again struck defendant with his fist. Both men fell, Keener on top; but in the scuffie Gregory wriggled from under Keener and got on top. Defendant put his arm around Gregory, and was seen to stab him several times with a knife held in his right hand. After the combatants were pulled apart, defendant was heard to say: "Let me to him. I will fix him yet." Gregory was taken to a physician, who dressed his wounds. The physician testified that Gregory had received seven knife wounds, one of which was dangerous, and that he was bleeding profusely. As to the wound which he characterized as dangerous, the physician said that it "would have killed him under conditions."

In his own behalf, defendant testified that he tried to avoid trouble with Gregory; that the latter struck the first blow; that Gregory had a knife in his hand; that he knocked it out of his hand in the exchange of blows; that Gregory drew from his pocket what defendant thought was a pair of knucks, and struck him therewith, breaking his left shoulder blade; that he fell, and Gregory fell on top of him; that he (defendant) drew his knife, opened it with his teeth, and struck Gregory with the knife in order to protect himself; and that, as soon as Gregory called for help, he stopped striking him with the knife.

Dr. J. P. Baird, by deposition, testified to the effect that on November 4, 1908, he examined defendant, and found his collar bone broken, and a "bruise on top of the collar bone, appearing as if it had been done with a moderately blunt instrument"; that he found a contusion on defendant's left cheek, and a knife wound, about five inches long, in the left forearm, which wound was but skin deep; and that defendant at the time also complained of a bruise on the right side.

The evidence is quite conflicting, particularly as to which man was the aggressor; the evidence for the state being that the defendant struck the first blow, while that for defendant tended to show that Gregory began the fight.

Defendant filed a motion to quash the information, which motion was overruled by the court; the defendant duly excepting. Said motion assailed the information on two grounds, to wit: (1) Because the information charged no offense under the laws of this state; and (2) because, according to the motion, no preliminary hearing had been accorded the defendant.

The information, leaving off the formal parts, is as follows: "Fred W. Barrett, prosecuting attorney within and for the county of Christian, in the state of Missouri, informs the court under his official oath and upon his best information and belief, that Jesse F. Keener, on or about the 2d day of November, 1908, in the said county of Christian, in the state of Missouri, in and upon one Barney Gregory, feloniously, on purpose and of his malice aforethought, did make an assault, and then and there, on purpose and of his malice aforethought, feloniously assault, beat, and wound and stab him, the said Barney Gregory, with a large knife of the length of six inches, which was then and there a dangerous and deadly weapon likely to produce death and great bodily harm, which knife he, the said Jesse F. Keener, then and there had and held in his right hand, with intent then and there him, the said Barney Gregory, on purpose and of his malice aforethought, feloniously to kill and murder, contrary to the form of the statute," etc.

The information charges the offense in the language of the statute, and the intent is plainly charged. Defendant, however, insists that the information is bad, and that his motion to quash should have been sustained, for the reason that the word "did" is omitted from the charging part of the information. The information reads: "Did make an assault, and then and there, on purpose and of his malice...