State v. McNamara

• Citation: 100 Mo. 100,13 S.W. 938
• Parties: STATE v. McNAMARA.
• Decision Date: 10 February 1890
• Court: United States State Supreme Court of Missouri

13 S.W. 938

100 Mo. 100

STATE v. McNAMARA.

Supreme Court of Missouri.

February 10, 1890.

ASSAULT WITH INTENT TO KILL — INDICTMENT — EVIDENCE — VERDICT.

1. An indictment presented without the names of witnesses indorsed may properly, by order of court, be returned to the grand jury to supply the omission, and entered on the following day.

2. An angry dispute arose at a school meeting between one whose vote was challenged and the challenger, and the latter and his brother were rushing towards the voter, and in the direction of defendant, who was chairman, when defendant drew and raised his revolver, and a third brother, sitting near, came up behind and threw his arms around him, pressing his arms down. Defendant partially freed himself, and, throwing his hand over his shoulder, and looking back, fired. He testified that he feared an attack from one of the brothers, who was drawing off his coat, when he received a blow in the back of the head, and was grasped from behind. Held, that whether he had reasonable cause to believe he was in immediate danger was properly left to the jury. SHERWOOD, J., dissenting.

3. An instruction that, "if the jury, from all the evidence, have any doubt of defendant's guilt, and further believe from the evidence that defendant has for a long time and now possesses a good moral character for peace, sobriety, and honesty, then such fact of good character, coupled with the presumption of innocence, is sufficient upon which to find a verdict of not guilty," is properly refused.

4. It is not error to neglect to give a proper instruction as to evidence of good character, though an improper one was asked and refused, and the statutes require the court to declare the law applicable to the case. SHERWOOD, J., dissenting.

5. Statement by counsel that "the only object of the law in allowing evidence of defendant's good character is to show that a man did not do the act, * * * and evidence of good character cannot do this defendant any good," will not require a reversal where the sentence, as shown by the bill of exceptions, indicates a probable omission, and counsel makes affidavit that he said that good character was not an excuse for the commission of crime; and in this case the evidence was clear that defendant did the shooting, and as there was no reasonable cause for his doing it, evidence of good character could not do him any good. SHERWOOD, J., dissenting.

6. A verdict for assault with intent to kill cannot be impeached by affidavit of a juror that he intended a verdict for carrying concealed weapons.¹

7. "Pertentiary" instead of "penitentiary" in a verdict will not require a reversal.

Appeal from circuit court, Montgomery county.

Silver & Brown and John M. Barker, for appellant. The Attorney General, for the State.

BRACE, J.

At the April term, 1887, of the circuit court of Montgomery county, the defendant was indicted, under section 1262, Rev. St. 1879, for shooting at one George W. Woods, "on purpose, and with malice aforethought," with a loaded pistol, with intent to kill, and at the same term was found guilty of assault with intent to kill under section 1263, and his punishment assessed at imprisonment in the penitentiary for two years. From the sentence and judgment on the verdict he appeals. The shooting took place at a school meeting in the district on the 5th of April, 1887, when an election was being held for school directors. Two ballots had been taken, which had resulted in a tie. The third was progressing, when a young man by the name of "Rodgers" going to vote, his vote was challenged by John Woods, a brother of George, whereupon an angry altercation ensued between them, and John Woods rushed toward Rodgers, followed by his brother Alexander, who was near him when the altercation commenced. While these two brothers were bearing down on Rodgers, and running, probably in a general direction, towards the place where the defendant was, he drew his pistol, a revolver, from his hip-pocket, brought it round to the front of his person with his right hand, caught it with his left, raised it, facing in the direction of the Woods brothers, when George Woods, who was in the rear of the defendant and near him, came up behind him, threw his arms around him, pressing defendant's arms to his side. The defendant by struggling got his right arm loose from George's embrace, raised it, bringing the pistol in his right hand over his left shoulder, and, turning his face in that direction, looked towards George's head and fired, the shot passing through George's cap. The defendant was then thrown to the floor, and the revolver taken away from him. The evidence for the state tended to prove that nothing offensive had been done or said to the defendant by any one before he drew his revolver, and that George Woods had been sitting quietly near him up to the moment when he took hold of the defendant in the manner stated for the purpose of preventing him using it. The defendant testified that he drew his pistol, and placed himself in a defensive position, in apprehension of an attack from Alexander Woods, who was approaching him, and drawing off his coat, when he received a blow from some one on the back of his head; was immediately thereafter grabbed from behind; tried to look around, and, in the impulse of self-defense, threw up the pistol and fired.

1. The record shows that the indictment in this cause, which is in every respect a sufficient and formal one, was returned into court and entered on the 26th of April, 1887. Its validity, or that of the proceedings under it, is in no way affected by the fact that it was presented the day before; but, not having the names of the state's witnesses indorsed thereon, was not entered, but by order of the court returned to the grand jury for that reason, as the affidavit of the clerk tends to show.

2. The bill of exceptions was filed in vacation by leave of court, entered of record in term within the time allowed, and is part of the record for review. Sess. Acts 1885, p. 214. But in it we find no specific objections to the admission or rejection of evidence, nor any exceptions properly taken and saved to any ruling of the court thereupon.

3. The instructions given by the court are perhaps obnoxious to some of the verbal criticisms made upon them, but, on the whole, presented very fairly the issue between the state and the defendant on the offense of which he was found guilty, telling the jury, in substance, that if the defendant, in the heat of passion, shot at George Woods with the intention of killing him, the defendant was guilty of the offense defined in section 1263, unless such shooting was done under such circumstances as to be justified on the ground of self-defense, and requiring them to find all the necessary facts constituting the offense beyond a reasonable doubt, and to acquit if they had a reasonable doubt on the whole case. The instruction on self-defense was not erroneous, in that the question whether the defendant had reasonable cause to believe that he was in immediate danger was submitted to the jury, (State v. Sloan, 47 Mo. 604; State v. Eaton, 75 Mo. 587; Nichols v. Winfrey, 79 Mo. 544;) and in other particulars was such as has been approved by this court, (State v. Thomas, 78 Mo. 327.)

4. The defendant asked four instructions, all of which were refused. The second, third, and fourth were upon the ground of self-defense, and, in so far as they stated correct propositions of law applicable to the facts of the case, were as favorably stated for the defendant in the instructions given by the court on that branch of the case as in those asked; and for the refusal to give them he has no just cause of complaint. The first is as follows: "(1) If the jury, from all the evidence in this cause, have any doubt of the defendant's guilt, and further believe from the evidence that the defendant has for a long time and now possesses a good moral character for peace, sobriety, and honesty, then such fact of good character, coupled with the presumption of innocence which the law invokes, is sufficient upon which to find a verdict of not guilty, and the jury may then acquit the defendant." The court committed no error in refusing this instruction. The jury had no right to acquit the accused on any kind of doubt short of a reasonable doubt, whether the defendant was a man of good or bad character, and the court had no right to tell the jury that any doubt supplemented by proof of good character would authorize them to acquit. It was for the jury to determine, taking into consideration the evidence of defendant's good character in connection with all the other evidence in the case, whether there was such a reasonable doubt of his guilt as to authorize an acquittal.

It is contended, however, that, conceding that the court committed no error in refusing the instruction in the form asked, yet the defendant, having given evidence tending to establish his good character, it was the duty of the court to give a correct instruction on the subject, and that the court committed reversible error in neglecting to do so. It has been repeatedly held in this state that evidence of good character of defendant in criminal cases is always to be considered by the jury in making up their verdict as to the guilt or innocence of the accused. State v. McMurphy, 52 Mo. 251; State v. Alexander, 66 Mo. 148; State v. Underwood, 76 Mo. 630; State v. McNally, 87 Mo. 644. It has also as frequently been held that evidence of good character of the defendant is to be treated the same as any other evidence of fact in the case; "that no legitimate distinction can be taken between them." State v. Alexander, supra; State v. McNally, supra; State v. Swain, 68 Mo. 705. If this be so, it is difficult to see on principle why the fact of character should in any case be selected from other facts in the case, and made the subject of instructions. The practice of singling out...