State v. Pohl

• Decision Date: 18 November 1902
• Citation: 70 S.W. 695,170 Mo. 422
• Parties: STATE v. POHL.
• Court: Missouri Supreme Court

70 S.W. 695

170 Mo. 422

STATE v. POHL.

Supreme Court of Missouri, Division No. 2.

November 18, 1902.

CRIMINAL LAW—INFORMATION—OATH—ASSAULT —SELF-DEFENSE—HARMLESS ERROR.

1. Under the amendment to Const. art. 2, § 12, in force December 19, 1900, permitting the prosecution of a felony by information, such information for a felony need not be under oath, but is sufficient if presented by the prosecuting attorney under his official oath.

2. The mere fact that one has a knife in his hand does not, in the absence of anything tending to show that he intended to do injury with the knife, justify an assault on him by one towards whom he is walking.

3. Defendant, on trial for assault with a deadly weapon, cannot object to errors in instructions in regard to self-defense, where he was entitled to no instructions on that theory of the case.

4. A defendant in a criminal prosecution cannot object to error in an instruction given at his own request.

Appeal from circuit court, Maries county; Jas. E. Hazell, Judge.

Charles Pohl was convicted of assault with a deadly weapon, and he appeals. Affirmed.

The amendment to Const. art. 2, § 12, in force December 19, 1900, permits the prosecution of a felony by information as well as indictment.

Crites & Garrison and Joseph W. Mosby, for appellant. The Attorney General and Jerry M. Jeffries, for the State.

BURGESS, J.

Defendant was convicted, and his punishment fixed at four years in the penitentiary, under an information filed by the prosecuting attorney of Maries county in the circuit court of said county, charging him with assaulting, with malice aforethought, with a deadly weapon, one Enoch Baumgartner. He appeals.

The facts are that Baumgartner was administrator of the estate of defendant's mother, and curator of defendant's estate; and, after the arrival of age of defendant, they had some disagreement, and a lawsuit over the estate of the mother, in which defendant recovered judgment against him. Over these matters bad blood was occasioned. Some months prior to the difficulty, the defendant desired to borrow the sum of $700 on the farm that had been left him from his mother's estate. As there was a mortgage upon it at that time, he was unable to do so unless Baumgartner would sign the note as his surety. After numerous requests, Baumgartner agreed to and did this, taking a deed of trust upon defendant's land to indemnify himself against loss. At about the time this difficulty occurred, the defendant had contracted to sell the place, and a controversy arose over the question of the payment and release of the deed of trust. There is a dispute and contention as to what the facts were in that respect. On the morning of the occurrence, Baumgartner went to Paydown, a little town in Maries county, where it was agreed among the parties they should meet, and the matters be arranged. He found defendant in a saloon at that place. Defendant had been there all the morning, drinking. When Baumgartner went into the saloon, the defendant met him about the middle of the room, and, without any cause or provocation, uttering an oath, struck Baumgartner forcibly upon the face with his fist, who, surprised and stunned at the assault made upon him, turned and fled, attempting to get out and keep out of the way of the...