State v. Ma Foo

• Decision Date: 28 March 1892
• Parties: The State v. Ma Foo, Appellant
• Court: Missouri Supreme Court

19 S.W. 222

110 Mo. 7

The State v. Ma Foo, Appellant

Supreme Court of Missouri, Second Division

March 28, 1892

Appeal from Franklin Circuit Court. -- Hon. R. Hirzell, Judge.

Affirmed.

J. E Merryman and A. H. Bolte for appellant.

(1) The court erred in giving instructions, numbered 1 and 2, as to what constitutes mayhem and the sufficiency of the testimony necessary to convict. R. S. 1889, secs. 3488-9, 3491; 1 Russell on Crimes, p. 583. (2) The court erred in giving instruction, numbered 4. State v. Leak, Phill. (N. C.) p. 450; 1 Russell on Crimes, p. 582-3; State v North, 95 Mo. 615; State v. Stewart, 29 Mo 419; State v. Warden, 94 Mo. 648. (3) The court erred in its instruction on defendant's flight. State v. Brooks, 92 Mo. 542; State v. Griffin, 87 Mo. 608. (4) The court erred in giving instruction, numbered 7, and in refusing to instruct in connection therewith "that there was no evidence that the defendant's husband disapproved of the acts of the defendant, and unless that fact is established the jury should acquit the defendant." Com. v. Churchill, 132 Mass. 267; Com. v. Flaherty, 140 Mass. 454; 4 American & English Encyclopedia of Law, p. 701, and the authorities there cited; State v. Bentz, 11 Mo. 27; Curd v. Dodd, 6 Bush, 681.

John M. Wood, Attorney General, for the State.

(1) The court correctly declared the law in its instructions. (2) Instruction, numbered 7, correctly declares the law in relation to the defense of coverture. "It is a doctrine of the English common law, that, if a crime of minor grade be committed by a wife in company with or in the presence of her husband, it is a rebuttable presumption that she acted under his immediate coercion." Wharton's Criminal Law [9 Ed.] sec. 78; 1 Bishop's Criminal Law [7 Ed.] sec. 362; Com. v. Uhl, 6 Gratt. 706; Sellers v. People, 77 N.Y. 413; Regina v. Torpey, 12 Cox's Criminal Cases, 45.

OPINION

Gantt, P. J.

Defendant was indicted under the name of Annie Baker. Under this name she prayed a change of venue, and, upon it being granted, she signed bond for appearance in Franklin circuit court. In the Franklin court she alleged her true name was Annie Ma Foo, and the proceedings were afterwards conducted accordingly.

She was indicted at the January term, 1891, of St. Louis criminal court, for mayhem under section 3488. The indictment was in three counts, the first two for mayhem differing only in the corrosive fluid used, and the third charged a felonious assault. At the close of the testimony the state entered a nolle prosequi as to the third count, and appellant was convicted upon the second, her punishment being assessed at five years' imprisonment in the penitentiary.

After unsuccessful motions for new trial, and in arrest, she was duly sentenced in accordance with the verdict, and from this judgment she has appealed.

The testimony on behalf of the state was substantially as follows: In the city of St. Louis on the twenty-fifth day of July, A. D. 1890, appellant was engaged in a Chinese laundry on South Broadway near the corner of Anna street; she was known as Annie Baker, and was reputed to be the wife of the Chinese proprietor, to whom she had borne a child. On Anna street, around the corner from Broadway, in the same block, lived Mrs. Kelly, a widow, who had a son named Walter, eleven years of age. On the morning of that day, about ten o'clock, Walter left home to go to a relative's house on Broadway, in company with two little girls. As they reached the laundry, they stopped a moment to look into the open door, when appellant came to the door, holding her hands behind her, and exclaiming, "You will look in here, will you?" suddenly dashed the contents of a bowl into the face and upon the body of the boy. The child began to scream with pain, and was led home by some person attracted by his cries, dripping and wailing. Physicians were summoned as speedily as possible, one of them an experienced oculist, and the best known treatment adopted. The boy's eyes were both burned, apparently by some strong alkali, as also the skin of his face, his lips and one of his arms; his clothing was also discolored and corroded, and smelt of concentrated lye. The eyes ulcerated, burst and sloughed away, and the lids grew together upon the remnants of the eyeballs; the lad was never able to see from the time the liquid was thrown into his face, and is now totally and incurably blind.

After the child was taken home his mother and an older brother went to the laundry, where they saw appellant and the Chinaman. Mrs. Kelly said to the appellant: "What did you do that to my poor little boy for?" To which appellant answered: "Yes, I done it, and I will do it again if I have a chance."

There was testimony of an eye-witness that she also said she did not intend it for him, but for another boy (named Berry), adding, "I will make them keep away from my door." The brother addressed the Chinaman, in the presence of the appellant: "What did you do that to my brother for?" and he replied, "Me no do it, my wife do it."

Shortly afterwards appellant went out, back into an alley, crossed over the street, entered a house, went through it and a rear yard into another alley, made her way to the car stables and took a street car going up town. She was followed by the brother, who got upon the same car. After riding a few blocks, she got off, and he did the same, and shortly after, seeing an officer, hailed him and had her arrested. On the way to the police station the officer had a conversation with her, in which she said it was only soap suds which she had thrown, and when told she had blinded the boy replied: "If I did, I will do it again."

There was no testimony on the part of the state that the husband of appellant was present at the commission of the act charged, but only that he was in the laundry when the mother and brother of the injured boy came there, several minutes after the deed was done.

Upon the trial the state admitted, "for the purpose of this case," that appellant and the Chinaman, Ma Foo, were married.

Appellant, testifying in her own behalf, said: "On the twenty-fifth day of July I was ironing at the table, my husband and I, my husband on one side of the room and I on the other; on Thursday we washed and on Friday we ironed, and I was ironing awhile and concluded to scrub the floor, and I went back to get some wash water that we used the day before, to wash the floor with. There was a great deal of starch -- this Chinese starch, you know -- on the front part of the wall and the door, that got on there when he was starching the things, and the door was open. When I washed the floor up I had two dippers full of the water left, and threw it on the edge of the door to wash that off, and I never saw anyone when I threw it, at the time it occurred, until this little boy cried, and said I threw it in his eyes. If I did it, I did it unintentionally; why would I want to put anyone's eyes out for? * * * The boy was never in my house, that I know of, I never saw him before. * * * I had no idea or intention in the world of throwing that water in that boy's eyes. * * * There was quite a crowd came into the house, Mr. Kelly and Mrs. Kelly. I don't remember what I said; there was such excitement, and they were making such distress, I didn't know what was said. All I recollect, Mr. Kelly said to my husband, 'If that was you, I would fix you.' * * * By reason of his making threats, and there was such a crowd outside, I thought I had better go up and see what they could do about it; and I thought I had better go away from there; that they would mob the house, or something. I had to go through the front to get out, and I went down Elm (Lami) street and she, Mrs. Kelly, was in the alley. I got on the car and it did not go, and I got on another, and on that car I was arrested. I was going to Jo Hon Yee, to tell him, and see what I should do. They were making such threats, that scared me. That was my object in going there, and no other object. There were only two places, the front and back way. I went out the back, right by Mrs. Kelly's house. I could have gone from the house and got on a Fifth street car, but I went by Mrs. Kelly's house.

"Q. Where was your husband at the time the water was thrown -- whatever they call it? A. He was ironing at one side of the room.

"Q. How far were you from him when you threw the water? A. He was ironing at the same table and never moved. The water that I threw was wash water from the day before. I had used it with my hands. I worked myself, and he did also. That was the kind of water that struck the boy."

Dr. Alt and Dr. Fulton were called. Dr. Alt gave it as his opinion from the examination made that evening, that the injury was caused by a strong alkali thrown into the boy's eyes, perhaps concentrated lye. Dr. Fulton did not analyze the fluid, but it was corrosive.

OPINION.

I. As the defendant was convicted under the second count, the instruction as to that count only is here for review.

The court charged that the assault must have been made with the intent then and there, feloniously, on purpose and of malice aforethought, to maim the boy; and that defendant in pursuance of this intent did, feloniously, on purpose, and of her malice aforethought, cast, or throw, the corrosive fluid into the eyes of the boy, and did, in this way, put out his eyes.

The court correctly defined the terms, malice, malice aforethought and "on purpose;" and correctly defined a very plain statutory offense.

II. The objection to instruction, numbered 4, is equally unfounded. The court did not assume any fact, but left the jury free to find "that the defendant knowingly and wilfully threw some corrosive fluid into the face and eyes of Walter...