State v. Keener
| Decision Date | 12 February 1910 |
| Citation | 125 S.W. 747,225 Mo. 488 |
| Parties | THE STATE v. JESSE F. KEENER, Appellant |
| Court | Missouri Supreme Court |
Appeal from Christian Circuit Court. -- Hon. Jno. T. Moore, Judge.
Affirmed.
G. Purd Hays for appellant.
(1) The motion to quash should have been sustained because the information in this case charges no offense under the laws of the State. Nothing can be taken by intendment or implication in a felony case. The knife is described as being six inches long, but has no blade. State v. Furgerson, 152 Mo 92; State v. Daugherty, 30 Tex. 360; State v Evans, 128 Mo. 406; State v. Rector, 126 Mo 328; State v. Birks, 199 Mo. 263; State v. Woodward, 191 Mo. 617. That said information should have been quashed for the reason that the defendant was not accorded a preliminary hearing after his arrest as alleged in the motion to quash. Laws 1907, sec. 2476a, p. 243. (2) By the giving of said instruction 10 the court tells the jury that a knife is a deadly weapon, which the court had no right to do; that was a fact for the jury to find from the evidence and not for the court to declare as a matter of law. State v. Grant, 152 Mo. 57; State v. Harris, 209 Mo. 423. (3) That the court committed reversible error in compelling the defendant, over the objections of his counsel, to testify to things on which he was not examined in his examination in chief, and compelled the defendant to testify against himself. That defendant was compelled to tell things which were privileged and the evidence tended to prejudice the jury against him. The court invaded the rights of the defendant. Constitution, secs. 11 and 23, Bill of Rights; State v. Lehman, 175 Mo. 619. (4) The court committed reversible error in refusing to grant the defendant a new trial on newly discovered evidence. Sec. 2688, R. S. 1899; State v. Moberly, 121 Mo. 604; State v. Murray, 91 Mo. 95.
Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
(1) (a) The information charges the offense in the language of the statute, and is sufficient. It follows closely a form approved by this court. State v. Barton, 142 Mo. 453. Numerous decisions of this court attest the sufficiency of this information. State v. Dalton, 27 Mo. 13; State v. Harper, 69 Mo. 425; State v. Chandler, 24 Mo. 372; State v. Greenhalgh, 24 Mo. 373; State v. Hendrickson, 165 Mo. 264. (b) Defendant, in his brief, contends that the word "did" should have been placed before the words "feloniously assault, beat and wound and stab him," etc., and that since it is not found in the position indicated, the information is bad, notwithstanding its conformity to the form approved in State v. Barton, 142 Mo. 453. In support of this view he cites several cases. While these cases are illustrative of the care with which this court exacts compliance with the constitutional guaranty that each defendant shall be properly advised, by the indictment or information, of the charge against him, yet they have no bearing upon the case at bar. The information in this case charges that defendant "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, wound and stab him," etc. The word "did" used in immediate connection with the charge of assault is carried, in meaning, by every rule of grammatical construction, into connection with the following clause. And applying well recognized rules of grammar to an indictment, falls far short of supplying omissions by intendment. State v. Barton, 142 Mo. 453. (c) The other ground of the motion to quash went to a mere irregularity in the previous proceedings. State v. Pritchett, 219 Mo. 703. This ground of the motion, raising a question of fact, did not prove itself, and no evidence was offered by defendant on the hearing of the motion so far as the record shows. For this reason this ground of the motion cannot avail appellant here. State v. Craft, 164 Mo. 649. And generally the court's discretion in overruling motions to quash will not be reviewed. State v. Patterson, 159 Mo. 100; State v. Lucas, 147 Mo. 72. In fact, the evidence offered before the grand jury indicates in several instances that a preliminary examination was held and defendant discharged. This was sufficient to meet all requirements. State v. Pritchett, 219 Mo. 703. (2) The cross-examination of defendant as to his conduct the morning after the fight, incompatible with his statement that his shoulder blade was broken, was proper. State v. Myers, 221 Mo. 613; State v. Miller, 156 Mo. 85; State v. Miller, 190 Mo. 463. (3) Instruction 10 in this case does not necessarily fall within the rule laid down in the case of State v. Harris, 209 Mo. 438. There the instruction condemned predicated the specific intent to kill upon the use of the knife upon another at a vital part without requiring the jury to find that the knife used was a deadly weapon. In the tenth instruction in this case, also, the jury were not required to find the knife used by defendant to be a deadly weapon. The statute makes the stabbing of another on purpose, of malice aforethought and with intent to kill, the offense, regardless of whether the knife used is a deadly weapon. There are cases which seem to intimate that the tenth instruction is not bad. State v. Jones, 86 Mo. 626; State v. Musick, 101 Mo. 267; Jeff v. State, 39 Miss. 600. Further, in the case at bar the rule that the wounds given may sometimes characterize the weapon, conclusively, as dangerous (State v. Bowles, 146 Mo. 13, cited in State v. Harris, 209 Mo. 439), might be applicable.
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 scuffle 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, and that the latter struck the first blow; that Gregory had a knife in his hand, and 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 his 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 second day of November, 1908, in the said county...
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