State v. Mulhall

• Decision Date: 20 November 1906
• Citation: 97 S.W. 583,199 Mo. 202
• Parties: STATE v. MULHALL.
• Court: Missouri Supreme Court

97 S.W. 583

199 Mo. 202

STATE v. MULHALL.

Supreme Court of Missouri, Division No. 2.

November 20, 1906.

1. WITNESSES — CROSS-EXAMINATION—INTEREST.

Where, in a prosecution for assault with intent to kill, a witness for defendant, on cross-examination, stated that he did not state to prosecutor at the hospital, shortly after the shooting, that witness' brother had seen the shooting, but that witness had not, and also denied stating to the prosecutor that he called to see him and that, as soon as he got well enough, he wanted prosecutor to go to Texas with witness, and that he would make a man of him, it was not error for the court to permit prosecutor to contradict witness, and state what conversation occurred, for the purpose of showing witness' interest in the case, though defendant was not present at such conversation.

2. HOMICIDE—ASSAULT WITH INTENT TO KILL —ELEMENTS OF OFFENSE—STATUTE.

Rev. St. 1899, § 1847, provides that every person who shall, on purpose and of malice aforethought, shoot at or stab another, or assault or beat another with a deadly weapon, or by any other means or force likely to produce death or great bodily harm, with intent to kill, maim, ravish, or rob such person, or in the attempt to commit any burglary or other felony, or in resisting the execution of legal process, shall be punished, etc. Held, that the mere wounding of a person was not an element of such offense, so that if defendant shot prosecutor while committing a felonious assault on R. with intent to kill R., and without any intent either to kill or harm prosecutor, he could not be convicted of an assault with intent to kill the latter.

3. MAYHEM—ELEMENTS OF OFFENSE.

Where defendant, without justification, made an assault with a pistol on R., and, in the commission of such act, maimed, wounded, or disfigured prosecutor, and such wound was inflicted under circumstances which would have constituted murder or manslaughter if prosecutor had died, defendant was guilty of violating Rev. St. 1899, § 1849, defining mayhem.

Appeal from St. Louis Circuit Court; Robt. M. Foster, Judge.

Zach Mulhall was convicted of an assault with intent to kill, and he appeals. Reversed and remanded.

This cause is here upon appeal by the defendant from a judgment of the circuit court of the city of St. Louis convicting the defendant of an assault with intent to kill. Omitting formal parts, the information upon which this judgment of conviction is based, charges: "That Zach Mulhall, on the eighteenth day of June in the year of our Lord, one thousand nine hundred and four at the city of St. Louis aforesaid, with force and arms, in and upon one Ernest Morgan feloniously, willfully, on purpose, and of his malice aforethought, did make an assault; and the said Zach Mulhall, with a certain weapon, to wit, a pistol loaded with gunpowder and leaden balls, then and there feloniously, willfully, on purpose, and of his malice aforethought did shoot off, at, against and upon the said Ernest Morgan, then and there giving to the said Ernest Morgan with the pistol aforesaid one wound, with the intent then and there him, the said Ernest Morgan, feloniously, willfully, on purpose and of his malice aforethought to kill; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state." To this charge there was waiver of formal arraignment and plea of not guilty, and at the December term, 1904, the defendant was put upon his trial.

In order to determine the legal propositions presented by the record in this cause, it is only necessary to make a brief statement of the facts developed upon the trial. On the part of the state the testimony tended to show that in the month of June, 1904, the defendant was connected with what was known as a "Wild West Show" giving exhibitions at the World's Fair in the city of St. Louis. The prosecuting witness, Ernest Morgan, who was about 18 years of age, testified that he resided in the city of St. Louis, and on the 18th day of June, 1904, was in attendance at the World's Fair, and at about 9 o'clock in the evening of that day went to the Cummins' Wild West Show. According to his testimony the show concluded about 10 o'clock, and he started to leave the building. As he was going out of the show he saw about four or five men directly in front of him engaged in a scuffle, and then he heard a shot. He immediately turned to go back and get away, and when he had gone back four or five steps heard a second shot. He turned around to see where the shots came from, and saw the defendant, a short distance away, holding a gun in his hands and pointing it directly towards him, the prosecuting witness; then a third shot was fired which prosecuting witness says struck him, and he fell to the ground dangerously wounded. Prosecuting witness testified that he knew the defendant, having seen him in a show before, and at five or six different times in the two or three years preceding the shooting. This witness further testified that when he saw the defendant pointing the revolver towards him he saw a man backing away from the defendant towards and very near to where the prosecuting witness was standing, and that the defendant was looking directly in the direction of Morgan, the prosecuting witness, and that the man who was backing away from defendant had his back toward Ernest Morgan, and was slightly to one side, but nearly in line and between defendant and Morgan. After the shooting, the defendant went through some adjoining buildings, and was making his way toward the rear of the yard of the Siberian Railway Building when arrested. When the defendant was arrested he had in his possession a 38-calibre Smith & Wesson revolver, long barrel. The bullet taken from Morgan's hip was a "38-Long Colt," also known as a "38-calibre Colt bullet." Prosecuting witness at the hospital, the defendant being brought into his presence, identified him as the man who fired the shot. He also identified him at the trial.

The defense interposed in this case is that whatever shots were fired by defendant were at a man by the name of Frank Reed, and that they were fired in proper defense of his person. On the part of the defense there was evidence tending to prove that after the Wild West Show was over, between 10 and 11 o'clock, the defendant and three or four friends together started to leave the show, and go out on what was called "The Pike," and that the defendant's attention was called to the fact that Frank Reed might undertake to kill him. There was testimony tending to show that Reed and the defendant had previous trouble, and that Reed had made threats against the defendant. As the defendant, with these other parties, was walking toward the exit of the show ground and near the outer gate some one holloed, "Look out, Colonel," and the defendant claims that he observed Reed starting to draw his pistol, and that he drew his revolver, and threw it into the face of Frank Reed; then a scuffle ensued and there were three shots fired from the pistol of the defendant, one of the shots striking Reed. L. S. Corbett and George H. Williams, two of the parties with the defendant, both testified as to the trouble between Reed and the defendant. Corbett testified to seeing, during the trouble, a stout, heavy-set man, and saw in his hand what appeared to him to be a Derringer pistol pointing toward Mulhall. He also testified to several shots being fired, but did not state positively as to who fired the shots. Witness Williams testified as to the scuffle, and that there were several shots fired, and that he saw Mr. Reed during the time working for his gun. He further testified as to a conversation between himself and the prosecuting witness, but as to such conversation there was a conflict between the testimony of the prosecuting witness and Williams and Corbett. There was also a conflict in the testimony offered by the state and the defendant as to the manner of the shooting and the position of the parties.

The defendant, Zach Mulhall, testified in his own behalf. He testified that he saw the prosecuting witness after he was wounded that night, and states that he never saw him before that time to his knowledge or recollection. He gives his version of the difficulty as follows: "Q. Now, Mr. Mulhall, just state all that occurred with reference to this shooting from the time that you left the show up to the time that you were brought in the presence of Morgan. A. I left the show after the show was over, and went to the dressing room to change my clothes. I had been told several times that evening that Reed had made a threat that he was going to kill me. Well, I didn't pay much attention to it. I didn't care anything about it. He had made several of those kind of threats to the cowboys there, and had been put in jail for it on one or two occasions, and tried for it. And after the show was over, I changed my clothes, and I walked down the entrance to the Pike with Mr. Williams—the two Mr. Williams and Mr. Corbett, and that was all, I think, three of us—and myself. And on our way down, Johnny Murray and another cow puncher by the name of Jourdan says, `Yes, you better look out for him. He says he is going to kill you.' I never expected he would. I didn't care. I didn't think anything of it. Just before I got out the entrance I saw him standing up alongside of one of the pillars, and just as I got my eye on him he put his hand behind him for his six-shooter, and I grabbed and throwed a six-shooter in his face, and told him to stop it. And Johnny Murray and he grabbed my gun, and they both had a hand apiece on it, and he had his hand on the gun back in his hip pocket. I had one of my hands on this gun, and with the other I reached over and got his hand, and jerked it away from it, and slapped it down on this gun of mine, and held it there and, in the tussle, this gun of mine went off, and hit Johnny Murray, and when I hit ...