State v. Kyle
| Decision Date | 17 November 1903 |
| Citation | 76 S.W. 1014,177 Mo. 659 |
| Parties | THE STATE v. ELLA KYLE, Appellant |
| Court | Missouri Supreme Court |
Appeal from Moniteau Circuit Court. -- Hon. Jas. E. Hazell, Judge.
Reversed and remanded.
Edmund Burke and John Cosgrove for appellant.
(1) It was error to permit counsel for the State to ask defendant when she was being cross-examined, where she got the razor with which she cut Bert Christian. Defendant was not interrogated during her examination in chief, about the razor or anything pertaining to it. State v. Patterson, 88 Mo. 91; State v. Chamberlain, 89 Mo. 133; State v. Fullerton, 90 Mo.App. 411; State v Hudspeth, 150 Mo. 31; State v. Hathhorn, 166 Mo. 239. (2) The language of the statute is, "put out an eye," the charge is, "eye was cut and slit," not "put out." The State should not have been permitted to allege that Bert Christian's "eye was cut and slit" and then to prove that the sight of the eye was destroyed. Her eye might have been "cut and slit" but not "put out." State v Mitchell, 25 Mo. 420; State v. Owens, 73 Mo. 440; State v. Ballard, 104 Mo. 634.
Edward C. Crow, Attorney-General, and C. D. Corum for the State.
(1) The statute does not contemplate that the cross-examination of the defendant must be confined to a mere categorical review of the matters stated in the direct examination. In this case, the examination was confined to the "subject of the examination-in-chief," and was therefore proper. Our statute permits an examination of the defendant about any matter "referred to in his examination-in-chief." R. S. 1899, sec. 2637; State v. Avery, 113 Mo. 475; State v. McLaughlin, 149 Mo. 19; State v. Miller, 156 Mo. 85; State v. Fisher, 162 Mo. 169. (2) (a) Appellant urges that the State should not have been permitted to allege that the eye was cut and slit and under that allegation to prove that the sight of the eye was destroyed. Sufficient answer to this objection is the fact that no such objection was interposed at the trial. If the eye was slit, it was severed in twain. If cut in two, it was put out, and while the language of the information is not in the language of the statute, the charge is set forth with substantial accuracy and reasonable certainty and that is all the law requires. It is not necessary to use the particular words of the statute. State v. Mills, 146 Mo. 195; State v. Watson, 65 Mo. 115. (b) But conceding for the purpose of argument, that it was absolutely essential for the information to charge that the eye was put out, in order to constitute the offense of mayhem, under that clause of the statute. That portion may be rejected as surplusage. The charge in reference to the injured eye may be eliminated and the information contain the charge of mayhem by slitting and cutting the nose, in the language of the statute, and the proof sustains that charge.
Under an information lodged with the clerk of the circuit court of Moniteau county by the prosecuting attorney of the said county, under his official oath, charging that the defendant Ella Kyle, in and upon one Bert Christian, unlawfully and feloniously, on purpose and of her malice aforethought, did make an assault, and that said Ella Kyle, with a razor the nose of the said Bert Christian and the eye of the said Bert Christian, on purpose and of her malice aforethought, then and there unlawfully and feloniously did cut and slit, with intent, her, the said Bert Christian, then and there to maim and disfigure -- defendant Kyle was convicted and her punishment fixed at two years' imprisonment in the penitentiary.
After unavailing motions for new trial, and in arrest, she was duly sentenced in accordance with the verdict, and from this judgment she appealed.
The salient facts are about as follows:
Bert Christian and the defendant Kyle are both negroes, and at the time of the difficulty out of which this prosecution arose, resided in California, Missouri. At that time the defendant owned a vacant house in that town, near which Bert Christian lived. Temple W. B. F. Lodge had rented the house to hold a festival in, and for that purpose Bert Christian had loaned the lodge her tableware, lamps, table, etc. The festival was held, but the articles loaned were not removed for several days, and when Christian went after them a dance was being held in the house. She, however, went into the house, packed her dishes in two baskets, and when about to remove her lamp, which was lighted, the defendant extinguished the light. A match was, however, secured and the lamp relighted and removed. The removal of the lamp by Christian seemed to anger the defendant, who then went to her house, made all sorts of accusations against the prosecuting witness, and dared her to come forth, which she did, and a collision between them occurred, during which defendant struck her antagonist with a razor, cutting her nose and striking her eye by reason of which its sight was destroyed. The evidence on behalf of the defendant tended to show that at the time Christian was struck, she had one hand concealed beneath her clothes, and was striking defendant with the other. The defendant also testified that her motive in going to the house of Christian was to advise her that she intended to leave the next day for St. Louis, and that she should remove her table from the house before it was finally closed.
At the close of the evidence defendant prayed the court to declare the law to be that under the information and the evidence the defendant could not be convicted and the jury should acquit, which the court declined to do and she duly excepted.
The court then, over the objection of defendant, gave the jury a number of instructions with respect to the law and evidence of the case, of which that numbered one is as follows:
"The court instructs the jury that if they believe from the evidence that the defendant, Ella Kyle, on the 30th day of ...
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