State v. Meinhardt
| Decision Date | 05 March 1935 |
| Docket Number | No. 33467.,33467. |
| Citation | 82 S.W.2d 890 |
| Parties | STATE v. MEINHARDT. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Washington County; E. M. Dearing, Judge.
J. P. Meinhardt was convicted of assault to kill or do great bodily harm without malice aforethought, and he appeals.
Affirmed.
Don Purteet, of Jefferson City, for appellant.
Roy McKittrick, Atty. Gen., and Frank W. Hayes, Asst. Atty. Gen., for the State.
WESTHUES, Commissioner.
Appellant was charged, by an information filed in the county of Washington, Mo., with the crime of assault with intent to kill with malice aforethought. Upon a trial the jury, by their verdict, found appellant guilty of "an assault to kill or do great bodily harm without malice aforethought." They assessed the punishment at a fine of $500. Appellant's motion for a new trial was overruled by the trial court. From the judgment imposed, he has appealed.
Disputes over boundary lines, real and fancied, have caused many wars between nations and shooting affrays between individuals, some recorded and many unrecorded in the records of our courts. The history of the one here in question has been properly preserved in the records. The facts in the case in brief are about as follows: Appellant and the prosecuting witness, N. R. White, owned farms in the southern part of Washington county, Mo. A north and south road divided their farms. Highway No. 21 was located near this old north and south road. As is usual in such cases, in the construction of the new highway many crooks and turns existing in the old road were eliminated. This change in the highway left a part of appellant's land on the same side of the road as White's farm. We learn from the record that appellant sold to White a tract of land that the new road had separated from his main land. A dispute arose as to what land was included in this sale. White constructed a fence on what he claimed to be the line, and appellant destroyed it. White rebuilt it, and on the morning of April 26, 1932, after the fence had been replaced, and at about 5 o'clock, went to the location of the dispute. Appellant also went there at about the same hour. The prosecuting witness testified that he took a shotgun with him; that when he saw appellant cutting the wires of his fence he first thought he would shoot him, but instead placed his shotgun against a tree and approached appellant saying: "What in the devil are you cutting that fence for?" whereupon appellant picked up a rifle and said: "I'll show you," and shot at him twice. One bullet entered his chest and another went through his arm and thence into his body. White testified that he then picked up his shotgun and fired at appellant as appellant was fleeing from the scene; that appellant fired two more shots at him while so fleeing. White was taken to a hospital, and, although seriously injured, recovered from the effects of the wounds thus inflicted.
Appellant's version of the affair was that he heard some of his sheep bleating during the night and early in the morning went to investigate the trouble. He found that the fence constructed by White prevented the sheep from coming home, so he thereupon cut the wires. While in the act of cutting the wires, White, whom he had not discovered prior to this time, called him a vile name and shot at him with a pistol. The bullet passed through his cap, whereupon he, appellant, picked up his rifle and shot White in defense of his person. Both appellant and White introduced evidence in support of their theories.
Appellant, in his motion for a new trial, questioned the sufficiency of the evidence to sustain the verdict. There is no merit in this contention. There was positive evidence that appellant fired the first shot while White's gun was standing by a tree. The state also introduced evidence that appellant had made threats against White which, however, were not communicated to White. Appellant admitted that he had previously destroyed the fence constructed by White. White also had made threats which indicated clearly that both parties were in a belligerent mood. Boys would aptly express the situation by saying that both carried chips on their shoulders. The jury evidently took this view. Had they believed appellant to have been entirely at fault, a more severe punishment would have been inflicted. The injuries received by White were serious. One of the bullets passed through a lung and barely missed the heart. Since the verdict was supported by substantial evidence, the point made as to its insufficiency is ruled against appellant.
In six separate assignments appellant complains of defects in the proceedings pertaining to a preliminary hearing. A motion to quash the information was filed. The trial court directed the justice of the peace to amend his transcript. Thereafter appellant filed a second motion to quash. This motion was overruled. After the trial of the case, and on the hearing of the motion for a new trial, appellant introduced evidence in support of his motion to quash. A complete answer to this question will be found in State v. Shuls, 329 Mo. 245, 44 S.W.(2d) 94, loc. cit. 95 (2, 3), where we held that the evidence, in support of a motion to quash on the ground that a fatal defect existed in the proceeding pertaining to the preliminary hearing, must be introduced in support of the motion to quash prior to the trial. Pleading to the information is equivalent to a waiver of any such defects. The record disclosed that the second motion to quash was taken up by the court, and "the court after hearing and fully understanding same, the motion to quash is by the court overruled." No exception was taken to the action of the court in overruling the motion, and immediately thereafter appellant answered ready for trial. Appellant thereby waived any complaint with reference to the preliminary hearing.
Error was assigned to the action of the trial court in rejecting evidence, offered by appellant, of a statement alleged to have been made by the prosecuting witness, White, while in conversation with a justice of the peace concerning appellant. It appears from the record that after appellant had destroyed the fence for the first time, and before the shooting, White consulted a justice of the peace for the purpose of seeking advice with reference to the dispute. During this consultation White was alleged to have said: This statement was offered for the purpose of showing a malicious spirit on the part of White. The trial court may have well admitted this evidence. A party to a lawsuit is always entitled to introduce evidence of statements made by a witness which tends to show ill feeling or prejudice. Jones on Evidence (3d Ed.) §§ 850 and 851; 40 Cyc., p. 2656. The exclusion of this evidence, however, cannot be held to have been prejudicial to appellant, since there was an abundance of evidence in the record, both direct and circumstantial, showing White and appellant bore ill will towards each other. In the examination of the justice of the peace, a witness for appellant, whom White had consulted, the following appears:
Note the testimony of the prosecuting witness, White:
That ill feeling existed between appellant and White was not denied by any witness for the state. On the contrary, the state's evidence showed this to be a fact. The rejected evidence was cumulative...
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