State v. King

• Decision Date: 31 October 1883
• Parties: THE STATE v. KING, Appellant.
• Court: Missouri Supreme Court

78 Mo. 555

THE STATE

v.KING, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Johnson Criminal Court.--HON. J. E. RYLAND, Judge.

REVERSED.

J. J. Cockrell and Sam'l P. Sparks for appellant.

D. H. McIntyre, Attorney General, for the State.

HOUGH, C. J.

The defendant was indicted for a felonious assault, and was convicted, in the language of the verdict, “of maiming, wounding, disfiguring and endangering the life of one S. D. Fuller, without intent to kill,” and was fined $125.

The following extract from the defendant's testimony states the circumstances of the assault: “I was helping Mr. G. W. Ford to thresh on the 6th of last August, 1880. I was pitching wheat from the stack to the feed-table; we had finished the stack on the south side, and I was the only one pitching to the table on the north side. I went to the edge of the stack to get a drink of water, and while there I took a drink of whisky, and then a drink of water. While there, Dyer, who was feeding, got out of wheat and called for more wheat, and I then ran back and threw several bundles up. Then Fuller yelled something to the darkey, and I called him and asked him what he said, and he told me he had told the darkey (Dyer) “to knock them bundles off and to knock them to hell, by God,” and I said may be you had better get up there and knock them off, and he said ‘God damn your soul I can,’ and I said ‘God damn your soul, if you do I'll knock you down.’ He then got up on the foot-board in Dyer's place and I threw four bundles up. There were no bundles there when he got up. He knocked off two bundles and fed two, and then I knocked him off with the pitchfork. I hit him with the tines with just what force I thought would knock him off. I could have hit him with the handle or thrust the tines into him.”

1. CRIMINAL LAW: evidence of defendant's good character.

At the trial a witness for the State, who stated that he had known the defendant for several years, and had personal knowledge of his character, but did not know his reputation in the neighborhood where he resided, was asked on cross-examination to state what the character of the defendant was for being a peaceable law-abiding citizen, and the court refused to permit the witness to answer the question. This ruling of the court is assigned for error. We are of opinion the court properly excluded the testimony offered. In a criminal prosecution, the good character of a defendant is always admissible, but the law limits the inquiry in such cases to his general character as to the trait in issue. State v. Dalton, 27 Mo. 12; Wharton's Crim. Ev., § 58; Taylor's Ev., (7 Ed.) §§ 350, 351; 3 Greenleaf Ev., § 25. The mere opinion of the witness is not admissible. His experience and observation may not accord with the general repute.

2. AN INSTRUCTION.

It is also urged that the court erred in giving the following instruction: “It devolves upon the State to affirmatively prove to the satisfaction of the jury every material allegation in the indictment herein, and unless the State has so proven, to the satisfaction of the jury beyond a reasonable doubt, that defendant made the assault upon Fuller as charged in the indictment, with a deadly weapon, with malice aforethought and with the intent to kill and murder the said Fuller, then they should find the defendant not guilty as charged in said indictment.” The objection is that the jury are left to determine what are the material allegations in the indictment, and the instruction, therefore, submits to them a question of law. We do not think the instruction, when fairly considered as a whole, is obnoxious to the objection urged. The court designates in the instruction the material allegations which the State must prove, and the instruction is evidently worded with a view of informing the jury that the facts required to be found constitute the material allegations referred to.

As the defendant was found guilty under other instructions of an assault with intent to kill, we would not have noticed this instruction, but for the fact, that for reasons hereinafter given the judgment must be reversed.

3. CRIMINAL LAW: presumption of guilt arising from...