State v. Miller

• Decision Date: 01 December 1920
• Docket Number: No. 22241.,22241.
• Parties: STATE v. MILLER.
• Court: Missouri Supreme Court

225 S.W. 913

STATE v. MILLER.

No. 22241.

Supreme Court of Missouri, Division No. 2.

December 1, 1920.

Appeal from Criminal Court, Jackson County; E. E. Porterfield, Judge.

Nicholas Miller was convicted of felonious assault, and he appeals. Affirmed.

On June 22, 1918, defendant was informed against by the prosecuting attorney in the criminal court of Jackson county, Mo., wherein he was charged with the commission of a felonious assault upon one Curtis Hill. On July 3, 1918, he was arraigned upon said charge and entered a plea of not guilty.

The cause was tried on April 7, 1919, before the court and a jury, with the result that he was found guilty by the jury, as charged in the information, and his punishment assessed at imprisonment in the state penitentiary for a term of two years, upon which verdict the court duly pronounced sentence in accordance therewith.

After encountering an adverse ruling of the court on his motions for a new trial and to arrest the judgment, defendant appealed to this court and in due time filed his bill of exceptions.

The facts will be further adverted to hereafter.

Frank W. McAllister, Atty. Gen., and C. P. Le Mire, Asst. Atty. Gen., for the State.

MOZLEY, C. (after stating the facts as above).

1. Defendant has filed no brief in this court, and we have been compelled, as best we could, to search the record in order to determine whether the alleged errors assigned in said motions in fact presented prejudicial errors against defendant.

2. Defendant assaults the information as not stating facts sufficient to constitute a crime under the laws of the state of Missouri. Omitting formal parts, the information reads:

"Now comes Hunt C. Moore, prosecuting attorney in and for the body of the county of Jackson, and upon his official oath informs the court that Nicholas Miller, whose Christian name in full is unknown to said prosecuting attorney, late of the county aforesaid, on the 7th day of June, 1918, at the county of Jackson, state of Missouri, in and upon one Curtis Hill feloniously, willfully, on purpose, and of his malice aforethought did make an assault, and the said Nicholas Miller, with a certain weapon, to wit, a pistol loaded with gunpowder and leaden balls, then and there feloniously, willfully, and of his malice aforethought did shoot at, against, and upon the said Curtis Hill, then and there giving to the said Curtis Hill in and upon the head and body of him, the said Curtis Hill, with the pistol aforesaid, two wounds, with the felonious intent then and there him, the said Curtis Hill, feloniously, willfully, on purpose, and of his malice aforethought to kill and murder, against the peace and dignity of the state."

No particular defect in the information has been pointed out in said motions or elsewhere, but we unhesitatingly hold that the attack made upon it is not well founded. State v. Sovern, 225 Mo. loc. cit. 583, 125 S. W. 769; State v. Bishop, 231 Mo. loc. cit. 415, 133 S. W. 33.

The information in the instant case (except name and date) is in the exact language of the information in State v. Sovern, supra, which was held to be good.

We hold the present information good and overrule the assignment.

3. The detail facts leading up to and the actual shooting of Curtis Hill are as follows: Curtis Hill was the city engineer of Kansas City, and had in his charge the letting of contracts for building bridges and of making estimates for and paying contractors from time to time pending the completion of the structure upon which such contractor was engaged in erecting, and when erected, if in compliance with the plans and specifications, to pay the balance of the contract price in full. These duties on his part were performed only with the approval of the board of public works. Defendant had a contract for the construction of a bridge, and a difference of opinion arose between him and the engineer about how much was due him at the particular time, he contending that a certain amount was due him, and the engineer contending that, if anything was due him, it was a much smaller amount. Defendant consulted with the engineer, the board of public works, and Mr. Pletherbridge, assistant city counselor, on three or four occasions, and was advised that his matter would be taken up at the ensuing board meeting of June 7th. At this meeting defendant was present, most, or all, of the board, and the city counselor and Curtis Hill. The board and engineer were transacting business for other parties which preceded defendant's matter. The city counselor tells what happened as follows:

"I sat with my back to Mr. Hill. I got a little nervous on account of a lack of time, and got up and walked past the table down toward the east. Miller saw me get up and come from where he was sitting in the chair down the aisle to where there was a little gate, and said to me `When am I going to get the balance of my money on the Brush Creek bridge?' I told him we would take it up in a few minutes with Mr. Hill and the board. He turned around and went back to his chair in the corner, about five feet of Mr. Hill, and as soon as he sat down he ran his right hand down in his right outside pocket, and pulled out the gun and pointed right at Mr. Hill and shot him twice. A portion of his skull the size of a quarter was carried away, and Hill fell down unconscious, and defendant was disarmed and taken into custody, and Hill was taken to a hospital."

4. From the record as we gather it the defense is insanity of defendant at the time he fired the shots that wounded Curtis Hill. Upon this defense we have carefully read the record, and, without setting out the testimony here, we deem it sufficient to say that there is testimony both pro and con of a substantial character on tilt question of his sanity or insanity, and the matter therefore was properly submitted to the jury for their determination, under proper instructions.

5. Defendant complains that —

The "court erred in excluding evidence from the consideration of the jury material in character tending to show cause of defendant's physical and mental condition before and at the time of the shooting and acts of harassment or...