State v. Lortz

• Decision Date: 31 January 1905
• Citation: 84 S.W. 906,186 Mo. 122
• Parties: STATE v. LORTZ.
• Court: Missouri Supreme Court

84 S.W. 906

186 Mo. 122

STATE v. LORTZ.

Supreme Court of Missouri, Division No. 2.

January 31, 1905.

ASSAULT WITH INTENT TO KILL—CONFLICTING EVIDENCE — COMPETENCY OF WITNESSES — CREDIBILITY OF WITNESSES—PUNISHMENT.

1. A conviction, on conflicting evidence, of an assault with intent to kill, will not be disturbed on review.

2. In a criminal prosecution, defendant and his wife are competent witnesses to testify in defendant's behalf.

3. Though defendant and his wife may testify for defendant in a criminal prosecution, their interest in the result and their marital relations may be considered in passing on the credibility of their testimony.

4. Where defendant was found guilty of assault with intent to kill with malice aforethought, and the minimum punishment of two years' imprisonment in the penitentiary was imposed, defendant cannot complain that the punishment is cruel and unusual.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Henry L. Lortz was convicted of assault with intent to kill, and appeals. Affirmed.

S. S. Bass, for appellant. E. C. Crow, Atty. Gen., and Sam B. Jeffries, for the State.

GANTT, J.

This is an appeal from a conviction of an assault with intent to kill, with malice aforethought, in the circuit court of the city of St. Louis. On the 17th day of December, 1903, the assistant circuit attorney of St. Louis filed his information in due form, verified by the affidavit of Patrick Layden, a competent witness, charging the defendant with having, at the city of St. Louis, "on the 8th of June, 1903, feloniously, willfully, on purpose, and of his malice aforethought, made an assault on Patrick Layden, and a certain pistol, loaded with gunpowder and leaden bullets, then and there feloniously, willfully, on purpose, and of his malice aforethought did shoot off at, against, and upon the said Patrick Layden, then and there giving to the said Patrick Layden, in and upon the head and body of him, the said Patrick Layden, with the said pistol, two wounds, with the intent then and there, him, the said Patrick Layden, feloniously, willfully, on purpose and of his malice aforethought, to kill, contrary to the statute in such case made and provided, and against the peace and dignity of the state." The defendant was duly arrested and arraigned, and entered his plea of not guilty. The cause was tried, and defendant convicted, and his punishment assessed at two years in the penitentiary. The defendant is not represented in this court by counsel, but, as in duty bound, we have examined the whole record to see if error was committed against the defendant.

The evidence discloses that on the 8th of June, 1903, the prosecuting witness, Patrick Layden, with his family, consisting of his wife and two small children, resided in the upper part of a building known as number 2403 Sarah street, St. Louis, and at the same time the defendant, with his family, occupied the lower floor of the same building or flat. Prior to the date of the difficulty between these two men, it appears that defendant's neighbors had petitioned the agent in charge of these flats not to lease it to defendant any longer, and a bad state of feeling was thus engendered between defendant and the prosecuting witness, who had signed said petition. The evidence established that the defendant was a stationary engineer, and for some weeks prior to this difficulty had been employed at the World's Fair. It was his custom to leave home at or about 9 o'clock each night to go to his work, as his work was at night from 11 o'clock to 7 next morning. During the day he would be at his home, and slept during the day. On the 8th of June he complained that his rest was disturbed by the noise made by Mrs. Layden in the upper fiat, and called to her to desist. On the part of the state, Mrs. Layden and Mrs. McAdams, a near neighbor, both testified that the defendant on the afternoon of that day came out in the back yard of these premises with a shotgun in his hand, and threatened to shoot Mrs. Layden, calling her a vile name. The prosecuting witness, Layden, returned from his work about 6 o'clock, got his supper, and after supper walked over to Easton avenue. While he was gone, his wife and Mrs. McAdams heard defendant threaten Layden's life, and his wife walked down the sidewalk and met him on his return. Together they started to enter the door which led from a small vestibule up the stairway. Layden was in front, and his wife following. According to the testimony of Layden and wife, corroborated by Mrs. McAdams,...