State v. Kester

• Decision Date: 16 February 1918
• Docket Number: No. 20435.,20435.
• Citation: 201 S.W. 62
• Parties: STATE v. KESTER.
• Court: Missouri Supreme Court

201 S.W. 62

STATE v. KESTER.

No. 20435.

Supreme Court of Missouri, Division No. 2.

February 16, 1918.

Appeal from Circuit Court, Douglas County; Fred Stewart, Judge.

Elmer Kester was convicted of felonious assault, and he appeals. Reversed and remanded.

Moore, Barrett & Moore, of Ozark, for appellant. Frank W. McAllister, Atty. Gen., and Geo. V. Berry, Asst. Atty. Gen., for the State.

WALKER, P. J.

The appellant was charged with Earnest Kester, his brother, in an information filed by the prosecuting attorney of Douglas county, with a felonious assault. The parties were jointly tried. Earnest Kester was acquitted, and the appellant was found guilty, and his punishment assessed at five years' imprisonment in the penitentiary. From this judgment he appeals.

Rebecca Barnes, charged to have been assaulted, lived with her husband and three small children in a house 50 feet or more from a public highway in Douglas county. At about 9:30 o'clock on the night of December 31, 1916, after the family had retired, Mrs. Barnes was awakened by the barking of their dogs. Arising, she went to the window and knelt by it to look out. She saw two men passing on horseback, and, arising from the window to return to her bed, she saw the appellant also passing on horseback going in the same direction, but somewhat in the rear of the other two. When he was opposite the house he turned in his saddle and fired a shot which penetrated the lower part of the window where she had been kneeling, the ball striking and severely wounding her. There is no evidence that she could have been seen from the highway. The testimony is conflicting as to whether it was a dark or a light night. Her husband, aroused by the report of the pistol, arose and reached her just as she was falling to the floor. He asked her what was the matter, and she said that Elmer Kester, who was passing along the road, had shot her. A few days prior thereto appellant had been reprimanded by Barnes, the husband, for boisterously cursing as he passed the house, whereupon he rode up to the gate, alighted from his horse, and dared Barnes to have him arrested, saying, among other things, "G_____d D_____m you; I will kill you!" Barnes thereupon went into his house, and the appellant mounted his horse and left. Mrs. Barnes was present during this transaction, but did not participate in the same, except to attempt to induce her husband to go into the house. The sheriff of the county was unable to find the appellant in the neighborhood the day succeeding the shooting. The evidence disclosed that the night the offense was committed appellant left, and was arrested the next day in Springfield. When apprehended he denied his identity and place of residence. Later he admitted he had been in trouble, and on the way to the police station gave the officer his name. On some points there was a sharp conflict in the testimony.

The errors assigned are that a demurrer should have been sustained to the state's evidence; that the testimony regarding the previous difficulty should have been excluded; that counsel for the state erred in his argument to the jury in asking why a certain witness named did not testify for the defendant; and in admitting statements made by Mrs. Barnes to her husband after being wounded.

I. The information filed herein follows with proper formality the phraseology of the statute (section 4481, R. S. 1909), which defines an assault with intent to kill. Appellant does not find fault with the information in this respect. His serious contention is that there was no evidence to sustain the charge as made, and that the verdict was therefore unauthorized. This contention is not without substance. The gravamen of an offense of the character here under review is dependent upon the intent with which the assault was committed. Under this statute to constitute the crime denounced there must be some facts in evidence from which such an intent can be reasonably deduced. It is not necessary for us to discuss whether or not the crime charged must be limited in its intent to the person alleged to have been injured, as in State v. Mulhall, 199 Mo. 209, 97 S. W. 583, 7 L. H. A. (N. S.) 630, 8 Ann. Cas. 781, and State v. Williamson, 203 Mo. 591, 102 S. W. 519, 120 Am. St. Rep. 678, because there are no facts here similar to those in the Mulhall and Williamson Cases, and hence the conclusions there reached are not pertinent.

The only affirmative testimony here as to the intent other than that to be deduced from proof of prior conduct is that the appellant shot in the direction of the house; there is nothing to show that he saw or could have seen Mrs. Barnes therein. Firing in the direction of the house, therefore, although the presumption may reasonably be made that appellant knew there were human beings therein, will not suffice to establish such an intent as is required to render him guilty as charged. At the worst the act was characterized by a spirit of ruffianism and indifference to results which richly merit punishment under a proper proceeding. Section 4483, R. S. 1909.

We are not unmindful of the fact that a charge of felonious assault under section 4481 may, under proper instructions (State v. Groves, 194 Mo. 452, 92 S. W. 631), sustain a finding of guilt for a lesser offense than that charged as expressly provided in sections 4903 and 4904, R. S. 1909, upon the theory that the inflicting of great bodily harm upon Mrs. Barnes by the appellant as denounced in section 4483, supra, constitutes a lesser offense of a kindred nature than that charged in section 4481, and hence is' punishable under this information. No instructions were, however, asked or given in relation to the character of the crime other than those defining an assault with intent to kill, and the verdict, as a consequence, cannot be upheld.

II. Appellant also complains of the admission of testimony as to the boisterous, profane, and threatening attitude of the appellant towards the husband of Mrs. Barnes in her presence and at their residence a short time before the shooting. We have recently, in State v. Hill, 201 S. W. 58, not yet officially reported, had occasion to discuss this question. In that case we reaffirmed the general doctrine that evidence of this character was admissible when the act charged did not speak for itself and different inferences might be drawn as to the intent with which it was committed. The proper application of the rule must of necessity be dependent upon the facts in each particular case. Here the former act was directed, if not towards the party injured, at least towards her husband and in her presence. It was of sufficiently recent occurrence before the shooting to show the animus of appe...