State v. Naves

• Decision Date: 13 December 1904
• Citation: 84 S.W. 1
• Parties: STATE v. NAVES.
• Court: Missouri Supreme Court

84 S.W. 1

STATE v. NAVES.

Supreme Court of Missouri, Division No. 2.

December 13, 1904.

ASSAULT WITH INTENT TO KILL — VERDICT — EVIDENCE — SUFFICIENCY — INSTRUCTION — INFORMATION — AFFIDAVIT — VARIANCE — CHANGE OF VENUE — CRIMINAL LAW — TRIAL — ABSENCE OF DEFENDANT — RECORD — PRESUMPTION — STATUTE.

1. There is no variance between an affidavit charging that the defendant shot and hit the prosecuting witness with a shotgun loaded with powder and leaden balls, and an information charging that defendant did shoot and wound the prosecuting witness with a certain double-barreled shotgun loaded with powder and leaden balls.

2. Where an information is verified by the prosecuting attorney, based on a complaint made by the prosecuting witness, it is valid, regardless of any affidavit.

3. Any error in the action of the court in respect to a change of venue in a criminal case can only be availing when properly preserved, with the objections and exceptions duly filed and made a part of the record.

4. Under the direct provisions of the statute, where the record in the appellate court shows that the defendant, on a prosecution for felony, was present at the commencement of the trial, it will be presumed, in the absence of all evidence in the record to the contrary, that he was present during the whole trial.

5. On a prosecution for assault with intent to kill, an affidavit of counsel for defendant that the defendant was absent during part of the cross-examination of one of the witnesses for the state, and that such absence was not waived or consented to by counsel for defendant, but from which it does not appear that counsel did not know that he was absent, is insufficient to authorize a reversal, especially as the affidavit was silent as to the nature of the cross-examination.

6. On a prosecution for assault with intent to kill, where the evidence as to defendant's guilt was wholly circumstantial, the court charged that "the state seeks a conviction on circumstantial evidence alone, and, while it is the law that a person may be convicted of such an offense on circumstantial evidence alone, before you can convict on such evidence, the circumstances, when all taken together, should be consistent with each other and consistent with the theory of defendant's guilt, and absolutely inconsistent with any reasonable theory of innocence"; that "circumstantial evidence should always be cautiously considered, and, to warrant a conviction, it must be such as to produce in the minds of the jury that certainty of guilt that a discreet man would be willing to act on in his own most important affairs"; and that, if they were not "satisfied of the guilt of defendant * * * beyond a reasonable doubt," they ought to acquit him, "although the unfavorable circumstances may not have been disproven or explained." Held, that though the use of the phrase "if any," immediately after the words "unfavorable circumstances," would have been more appropriate, such omission was not cause for reversal, as rendering the charge a comment on the evidence and assuming the existence of material facts.

7. On a prosecution for assault with intent to kill, evidence examined, and held sufficient to support a verdict of guilty.

Appeal from Circuit Court, Howell County; W. N. Evans, Judge.

William Naves was convicted of assault with intent to kill, and he appeals. Affirmed.

At the October term, 1903, of the circuit court of Ozark county, the prosecuting attorney filed an information against the defendant, charging him with a felonious assault, with intent to kill and murder, on one J. G. Jenkins, on the 23d day of July, 1902. The defendant asked for a change of venue on account of the bias and prejudice of the inhabitants of the counties of Ozark and Douglas, and also on account of the bias and prejudice of the judge of said court. The application was sustained, and the cause transferred to the circuit court of Howell county, presided over by Hon. W. N. Evans, Judge. On the 8th day of December, 1903, defendant was formally arraigned, whereupon he declined to plead, and the court ordered a plea of not guilty entered for him. He was put upon his trial, and convicted as charged, and his punishment assessed at imprisonment in the penitentiary for a term of four years. Defendant thereupon, on the 11th day of December, 1903, filed a motion for a new trial, which was overruled. Being also unsuccessful in his motion in arrest of judgment, an appeal was taken to this court.

The testimony in this cause, upon which the state relies to support the conviction, is purely circumstantial. It will be observed that the testimony in some of its features refers to the shooting of Ike Lantz and his son Frank, and they are frequently named in the testimony, and the assault upon them, the same night that the prosecuting witness Jenkins, was shot, is detailed with great particularity by the witnesses. This reference to the shooting of Lantz and his son, being in the same locality, was introduced as a circumstance tending to connect the defendant with the shooting of Jenkins. The court, by an appropriate instruction, confined the consideration of that testimony by the jury within proper limits and to the legitimate purposes for which it might legally be taken into consideration. The circumstances detailed by the witnesses for the state tended to show substantially the following state of facts:

"The defendant and Jerry Jenkins, the prosecuting witness, lived in Ozark county, Mo. Ike Lantz and his son, Frank Lantz, lived in Marion county, Ark. There was some evidence of bad feeling existing between the defendant and Jenkins. On the afternoon of the 23d of July, 1902, the defendant went to the home of a neighbor by the name of Andy Turnbo and secured his shotgun, and from there proceeded on horseback down the road a short distance to Jenkins' home. He called Jenkins out of his house, but, before Jenkins had an opportunity to see or inquire who it was, he fired several shots, taking effect in Jenkins' arm. Defendant then proceeded down the road about a mile and a half into Arkansas, where he called at the home of Ike Lantz. Lantz' daughter answered the call, and defendant told her that he desired to see her father. She returned to the house and told her father that the defendant, William Naves, wanted to see him. Lantz was in bed, but arose, put on his clothes, and went to the door, and asked Naves what he wanted. Naves said, `Nothing much;' and Lantz asked him to come in. Defendant then raised his gun and fired, several shots taking effect. Defendant then mounted the gray mare which he was riding and rode rapidly away. Lantz called his son, Frank, and told him to go to a neighbor by the name of Hillhouse, a short distance away, and tell him to come over; that he was shot. Young Frank Lantz went as rapidly as he could to the neighbor's house, who was with his wife at the time in the barn lot milking. They had just finished milking, when young Lantz came up and told them his father had been shot. Hillhouse and his wife were in the lead, going into the house, when a shot was fired, and young Frank Lantz fell, and from the effects of the wound died shortly afterwards. Several witnesses testify to seeing the defendant in that neighborhood that afternoon, and several other witnesses testify to the fact that they had seen a man answering the description of defendant on a gray mare riding along the road between the respective houses in question."

Numerous witnesses were introduced by defendant. We have read in detail all the testimony of the witnesses, both for the state and the defendant, and it can serve no useful purpose to reproduce such testimony. It is sufficient to say that the testimony introduced by defendant tends strongly to establish his defense, an alibi. If the testimony of the witnesses introduced by defendant was believed by the jury, then it would clearly entitle him to an acquittal. The defendant testified in his own behalf, and his testimony flatly contradicts the circumstances shown by the state, and clearly establishes that he was not present at the time of the assault upon Jenkins. For the purpose of discrediting the testimony of the defendant, it was shown that he had served a term in the penitentiary for burglary and larceny. This is a sufficient statement of the tendency of the testimony in this cause. We will further refer to it in the course of the opinion.

At the close of the testimony the court instructed the jury, and the cause was submitted to them. It is not essential to burden this statement with the reproduction of all the instructions. Those about which complaint is made will be given attention in the opinion. As before stated, upon the submission of the cause to the jury, they returned a verdict of guilty; and, upon the overruling of defendant's motions for new trial and in arrest of judgment, he prosecuted his appeal to this court, and the record is now before us for consideration.

Harrison & Boone, for appellant. The Attorney General, for the State.

FOX, J. (after stating the facts).

The propositions in this cause presented to our consideration, as indicated by the brief and argument of learned counsel for appellant, may be briefly stated thus: First, it is contended that the variance between the affidavit upon which the information was based, and the information, is fatal to the validity of the pleading; second, that the order changing the venue of this cause by the judge of the circuit court of Ozark county was a nullity, and conferred no jurisdiction upon the Howell county circuit court, to which said change was awarded; third, that the testimony is insufficient to support the verdict; fourth, it is contended that the court heard testimony upon the trial of the cause in the absence of defendant, and that this constitutes error; fifth, that instruction No. 8 is erroneous, for the reason that it is a comment on the evidence and assumes...