State v. Prendible

• Citation: 165 Mo. 329,65 S.W. 559
• Parties: STATE v. PRENDIBLE.
• Decision Date: 26 November 1901
• Court: United States State Supreme Court of Missouri

65 S.W. 559

165 Mo. 329

STATE v. PRENDIBLE.

Supreme Court of Missouri, Division No. 2.

November 26, 1901.

ASSAULT WITH INTENT TO KILL — INDICTMENT — REQUISITES — CRIMINAL LAW — TRIAL — EVIDENCE — SUFFICIENCY — CONDUCT OF PROSECUTING ATTORNEY.

1. An indictment for assault with intent to kill, which charged that defendant "with a certain weapon, did shoot off," etc., is not vitiated because of the use of the word "with" before the words "a certain weapon," as that word is necessary to show what weapon was employed in the felonious act.

2. On a prosecution for assault with intent to kill defendant claimed that the shooting was in self-defense, after complainant had drawn his gun and threatened to shoot him. Complainant denied having made any threats against defendant, but several witnesses testified to hearing him make threats, indicative of an intent to injure defendant, at various times during the day of the alleged assault, and immediately before the shooting. Complainant denied having a gun with him at the time of the shooting. Witnesses testified that he had a gun at that time, and reached for it, and that complainant's only witness as to the manner of the assault took it away immediately after the shooting. Complainant claimed that defendant first began to shoot. Witnesses testified that the two men were talking, when complainant first threatened to shoot, and reached for his gun. Complainant's only other witness as to the manner of the assault was contradicted by witnesses in numerous particulars. Held that, as the testimony of complainant and his witnesses was discredited so as to show that they were guilty of perjury, the court, under Rev. St. 1899, § 2688, authorizing the granting of a new trial when "the verdict is contrary to the evidence," will set aside a conviction based thereon, for that statute embraces testimony completely impeached.

3. Where the verdict of a jury in a criminal case evidently results, not from calmly weighing the evidence, but from passion or prejudice, the court on appeal will set it aside, and grant a new trial.

4. Where the prosecuting attorney, without being reprimanded by the court, persistently interrogated defendant's witnesses on immaterial and impertinent matters in an insinuating and slurring manner, tending to belittle them, there is ground for reversal of the judgment of conviction, though objections to such interrogations were sustained.

5. On a prosecution for assault with intent to kill it was error, for the purpose of impeaching defendant as a witness, to admit in evidence his previous conviction of an assault and battery.

6. Where evidence is wholly incompetent, a general objection thereto is sufficient.

7. Where the prosecuting attorney, without a reprimand from the court, subjected defendant to a series of immaterial questions tending to annoy and belittle him, presenting fictitious cases of his arrest for petty offenses, there is ground for reversal of the judgment of conviction.

8. Where the prosecuting attorney, in his cross-examination of witnesses, applied to defendant the term "loafer," and the court overruled defendant's objections thereto, the court's action is error.

Appeal from St. Louis circuit court; Selden P. Spencer, Judge.

Michael Prendible was convicted of assault with intent to kill, and appeals. Reversed.

Wm. H. Corcoran and H. Chouteau Dyer, for appellant. The Attorney General and Perry S. Rader, for the State.

SHERWOOD, J.

This prosecution was instituted against defendant, John Barry being the prosecuting witness, and the indictment charging that "Michael Prendible, on the 27th day of November in the year of our Lord, 1899, at the city of St. Louis, aforesaid, with force and arms, in and upon one John Barry, feloniously, willfully, on purpose, and of his malice aforethought did make an assault; and the said Michael Prendible, 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 John Barry, then and there giving to the said John Barry, in and upon the head and body of him, the said John Barry, with a pistol aforesaid, one wound, with the intent then and there him, the said John Barry, feloniously, willfully, on purpose, and of his malice aforethought, to kill," etc. The trial resulted in a verdict of guilty, and the punishment assessed at imprisonment in the penitentiary for the term of two years.

The testimony of John Barry and of Tierney, witnesses for the state, is in substance the following: John Barry, the prosecuting witness, testified, in substance, that on Sunday evening, the date prior to the shooting, his brother, Simon, had been arrested, and had been locked up in the police station. The next day, being the 27th day of November, 1899, Barry laid off from work, and set out early in the morning with the expressed intention of securing the release of his brother. He states that he was going along Jefferson avenue about 8 o'clock in the morning, and on reaching the corner of Jefferson avenue and Montgomery street, where there is a saloon and grocery store, he went in ostensibly to learn the whereabouts of his brother. After leaving the grocery store, Barry started out to go to Tenth and North Market streets, where he learned his brother was confined. On the way he met a man by the name of Quigley, and spoke with him. Barry reached the police station where his brother was confined, and for some reason, undisclosed by the record in this case, he himself was put in confinement, and retained there until about 5 o'clock of the day of the shooting. During his confinement there he had a conversation with a police officer named John B. Derby, who was for a time acting as turnkey. After his release, which occurred about 5 o'clock in the afternoon, it seems that Barry went back to the vicinity of Jefferson avenue and Montgomery street, and again fell in with Tierney; and about 8 o'clock of that same evening he again went to the same saloon, inquiring for the defendant, Prendible, stating as his reason why he wished to see him that he wanted him to act as a witness for his brother. On the second visit to the saloon he saw witnesses Menke and Schreihagen, and talked with them. From that time until the time of the shooting, which occurred about 10 o'clock that same evening Barry's movements are not very well defined, if at all. His testimony in regard to the shooting itself is as follows: "I was going north on Jefferson avenue on this evening, between the hour of — To the best of my recollection it was between eight and nine o'clock. I was coming from my sister's house, with a young man by the name of Tierney. We had just come outside, and were passing Jefferson avenue and Montgomery street, and I heard Prendible speaking inside, and I went to see him in regard to that younger brother of mine, — about his arrest, — who had been arrested the previous day; and, thinking Prendible was a friend of mine, and he was up until that day or evening, I opened the door, and called him. I says, `Mike, can I see you a minute?' and he says, `Yes;' and he came out of the saloon door, and when he came out the door I walked towards him, and just as he came out the door he came out shooting. There was two shots fired in rapid succession, and I fell. I picked myself up, and I turned around, and saw Prendible with a revolver in his hand. He was backing away and away from me, and I turned to him, and I says: `Mike, what is the matter with you? What did you shoot me for?' He says: `Never mind, you dirty s____ of a b____, or I will murder you, too.' That is all he said to me. That is all I said to him. My intention was to ask him in regard to my brother's arrest." The cross-examination showed that Barry had known Prendible for about 11 years, and prior to the occasion of the shooting had been on good terms with him. Barry denied that he had made any threats against Prendible advising him that he intended to do him bodily harm. He admitted having met Quigley during the course of his day's wandering, and having had a conversation with him, the import of which, however, was in regard to the whereabouts of his brother. He also admitted having seen Officer Derby at the station, and having spoken with him. He also admitted knowing Herman Menke, and admitted having seen him in the saloon on Jefferson avenue prior to the time of the shooting. Barry became somewhat confused in regard to the number of visits he made to the grocery store and saloon on the day of the shooting, but the final outcome of the testimony seems to be that he was there three times, — once in the morning about 8 o'clock, again in the evening somewhere between 7 and 8 o'clock, and again about 10 o'clock, when the shooting took place. Barry denied having told to any one that Prendible was the cause of his brother's arrest, or had anything to do with it. Barry denied that he carried a revolver, or any weapon, the day of the shooting. He admitted that he had been convicted of a charge of assault and battery, and that he had been sent to the workhouse for 30 days, some 5 or 6 years prior to this time. Barry's reasons for seeking out Prendible are as follows: "Q. But when you came out from your confinement, you did not make these inquiries at the police station at all as to whether your brother was to be tried, or what the charge was against him, or anything of that kind? A. No, sir. Q. You started out to see whether you could find Prendible, and find out whether he would be a witness for your brother? A. Yes, sir. Q. Now, you say that was your sole object and your sole purpose? A. Yes, sir. Q. Don't you know that it is not a fact at all that you were looking for Prendible as a witness in his case, because your brother was simply charged with carrying concealed weapons, and was not to be tried at all? A. I wanted to fetch the officer that...