State v. Prendible

• Decision Date: 26 November 1901
• Parties: THE STATE v. PRENDIBLE, Appellant
• Court: Missouri Supreme Court

65 S.W. 559

165 Mo. 329

THE STATE v. PRENDIBLE, Appellant

Supreme Court of Missouri, Second Division

November 26, 1901

Appeal from St. Louis City Circuit Court. -- Hon. Selden P. Spencer Judge.

Reversed and remanded.

William H. Corcoran and H. Chouteau Dyer for appellant.

(1) The State's attorney was guilty of such misconduct in his remarks to defendant's witnesses on cross-examination and in his willful and malicious characterization of defendant as should warrant this court in reversing this case on that ground alone. State v. Ulrich, 110 Mo. 350; State v. Young, 99 Mo. 666; State v Fischer, 124 Mo. 460. (2) The verdict of the jury is against the evidence and can be explained on no other ground than that it was the result of passion and prejudice. State v. Rockwood, 26 Mo. 340; State v Brosius, 39 Mo. 534; State v. Mansfield, 41 Mo. 470; State v. Daubert, 42 Mo. 238; State v. Marshall, 47 Mo. 378; State v. Burgdorf, 53 Mo. 65; State v. Jaeger, 66 Mo. 173; State v. Castor, 93 Mo. 242; State v. Primm, 98 Mo. 368.

Edward C. Crow, Attorney-General, for the State; Perry S. Rader, Special Counsel.

(1) Where there is substantial evidence to support the finding of the jury, as in this case, the appellate court will not interfere on the ground that the verdict is against the weight of evidence. State v. Bryant, 134 Mo. 253. (2) The appellate court will not reverse the judgment on the alleged ground that the State's attorney was guilty of misconduct in side remarks in the hearing of the jury and in his argument to the jury, if no evidence of such conduct is preserved in the bill of exceptions. There is no evidence of such conduct in this case, no affidavits, no objection or exception to such conduct anywhere recited in the bill, and nothing on which to base such allegation except the mere statement itself in the motion for a new trial. State v. Welsor, 117 Mo. 570; State v. Taylor, 118 Mo. 153. (3) This court will not reverse the judgment as being the result of passion or prejudice if there is substantial evidence on which to rest the verdict, but only when it can be explained in no other way than as having resulted from passion, prejudice or partiality. State v. Cook, 58 Mo. 548; State v. Musick, 71 Mo. 401; State v. Zorn, 71 Mo. 415; State v. Thomas, 78 Mo. 342; State v. Howell, 100 Mo. 659; State v. Primm, 98 Mo. 368; State v. Nelson, 98 Mo. 414; State v. Preston, 77 Mo. 294. (4) The indictment is sufficient. State v. Meguire, 113 Mo. 670; State v. Jones, 86 Mo. 624; State v. Elvins, 101 Mo. 244; State v. Wood, 124 Mo. 414; State v. Silk, 145 Mo. 240. The use of the word "with" before the words, "a certain weapon," do not constitute reversible error. This exact point was settled in State v. Turlington, 102 Mo. 651. 1 Bish. Crim. Proc., secs. 348, 356, 509 and 510; 1 Chitty Crim. Law, 231; Pierce v. State, 75 Ind. 199; State v. Myers, 85 Tenn. 203; State v. Fitzgerald, 20 Mo.App. 409; State v. Earp, 41 Tex. 418; State v. Thomas, 2 Tex. Ct. App. Rep. 293. Before an objection, because of false grammar, is entertained, the court should be satisfied of the tendency of the error to mislead. 1 Bish. Crim. Proc., secs. 354, 357; State v. Grant, 50 Ala. 207; State v. McDaniel, 94 Mo. 301; State v. Burnett, 81 Mo. 119.

OPINION

SHERWOOD, P. J.

This prosecution was instituted against defendant, John Barry being the prosecuting witness, and the indictment charging that:

"Michael Prendible, on the twenty-seventh day of November in the year of our Lord, one thousand eight hundred and ninety-nine, 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 given 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., 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 day prior to the shooting, his brother Simon had been arrested and had been locked up in the police station. The next day, being the twenty-seventh 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 eight 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 five 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 five 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 eight 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 ten 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 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 shows that Barry had known Prendible for about eleven 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 eight o'clock, again in the evening somewhere between seven and eight o'clock, and again about ten 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 thirty days, some five or six 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...