State v. Lortz
| Decision Date | 31 January 1905 |
| Citation | 84 S.W. 906,186 Mo. 122 |
| Parties | THE STATE v. LORTZ, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Jesse A. McDonald Judge.
Affirmed.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
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 seventeenth 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 eighth 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 eighth 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 No. 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 nine o'clock each night to go to his work as his work was at night from eleven o'clock to seven next morning. During the day he would be at his home, and slept during the day. On the eighth of June, he complained that his rest was disturbed by the noise made by Mrs. Layden in the upper flat 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 six 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, just as Layden took hold of the knob of his door to go up the stairway, defendant came out or reached out from his door, which opened on the same little vestibule and caught Layden by the collar back of his neck and threw him or dragged him to the floor within defendant's front room and at the time said, "You son-of-a-bitch, I have got you now." While Layden was yet down on the floor, defendant shot him twice; one bullet entered the left leg near the knee and the other entered between the scrotum and the anus. A third shot was fired which struck no one. A hand-to-hand struggle then ensued, and Mrs. Layden ran into the room and assisted in disarming defendant. In this struggle, both Layden and defendant bit each other. There was also evidence that defendant was bruised by falling...
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