State v. Priest

• Court: Missouri Supreme Court
• Writing for the Court: Burgess
• Citation: State v. Priest, 114 S.W. 949, 215 Mo. 1 (Mo. 1908)
• Decision Date: 15 December 1908
• Parties: STATE v. PRIEST.

114 S.W. 949

215 Mo. 1

STATE v. PRIEST.

Supreme Court of Missouri, Division No. 2.

December 15, 1908.

1. CRIMINAL LAW (§ 695)—TRIAL—GENERAL OBJECTIONS TO EVIDENCE.

A general objection to the admission of evidence in a criminal case may be overruled.

2. WITNESSES (§ 337)—IMPEACHMENT OF ACCUSED.

Where the defendant in a criminal case testifies in his own behalf, the state has the right to impeach him by showing that his general moral character is bad.

3. HOMICIDE (§ 300) — INSTRUCTIONS—SELF-DEFENSE.

In a prosecution for assault with intent to kill, evidence held sufficient to warrant an instruction on the question as to whether defendant was the aggressor, so as to preclude his claim of self-defense.

4. HOMICIDE (§ 300) — INSTRUCTIONS — SELF-DEFENSE.

In a prosecution for assault with intent to kill, instruction held to sufficiently present the issue of self-defense.

5. CRIMINAL LAW (§ 776)—TRIAL—INSTRUCTIONS — CHARACTER OF DEFENDANT — EVIDENCE TO SUPPORT.

In a prosecution for assault with intent to kill, testimony as to defendant's moral character, brought out by the state on cross-examination of defendant's witnesses furnishes no basis for an instruction as to defendant's character for peace and quietude.

6. CRIMINAL LAW (§ 1172)—APPEAL—HARMLESS ERROR—INSTRUCTIONS.

An instruction, which assumes that accused was of good character, when the evidence was conflicting, though erroneous, is not prejudicial to defendant.

7. CRIMINAL LAW (§ 761) — INSTRUCTIONS — PROVINCE OF JURY—ASSUMPTION OF FACTS.

In a prosecution for assault with intent to kill, an instruction that evidence of a former conviction of defendant merely goes to defendant's credibility and is not evidence that defendant is guilty of the offense charged, is not erroneous as assuming that the evidence shows a former conviction, where that fact was not controverted.

8. CRIMINAL LAW (§ 810)—TRIAL—INSTRUCTIONS —CHARACTER OF ACCUSED—CONFLICTING INSTRUCTIONS.

An instruction that evidence tending to show accused's bad character is not evidence that accused is guilty of the offense charged is not inconsistent with an instruction that good character does not excuse crime but that the jury may consider evidence of good character in determining the guilt or innocence of accused.

9. CRIMINAL LAW (§ 829)—TRIAL—REQUESTS FOR INSTRUCTIONS—INSTRUCTIONS ALREADY GIVEN.

It is not error to refuse to give an instruction as to the right of self-defense, where that right is fully covered by an instruction already given by the court.

10. NAMES (§ 5) — INITIALS AND ABBREVIATIONS.

In a prosecution under an indictment against "W. B. Priest," a judgment read in evidence against "Wm. B. Priest" is prima facie against the person indicted.

11. CRIMINAL LAW (§ 730) — REMARKS OF COUNSEL—ACTION OF COURT.

On defendant's objection to improper remarks by the prosecuting attorney in his closing address, the court stated: "It is out of line. The jury should disregard the allusion." The prosecuting attorney then said: "Counsel withdraws the remark if out of line." Held, that the making of the remarks was harmless error.

Appeal from Circuit Court, Monroe County; David H. Eby, Judge.

W. B. Priest was convicted of assault with intent to kill, and he appeals. Affirmed.

The court, in instruction 4, told the jury: That if they find from the evidence that, in the altercation between defendant and Finnegan, the prosecutor, the latter struck the first blow, and followed up the same by striking, or attempting to strike, defendant, and that at the time defendant shot Finnegan, if he did shoot him, he had reasonable cause to apprehend a design on the part of said Finnegan to do defendant some great personal injury, and that there was reasonable cause to apprehend danger of such design being accomplished, and that to arrest such apprehended danger he shot, and at the time he shot he had reasonable cause to believe, and did believe, it necessary to shoot to protect himself, then the shooting was justifiable, and the jury should acquit defendant on the ground of self-defense. That it is not necessary to self-defense that the danger should have been actual or real, or that it should have been impending, but all that was necessary is that defendant had reasonable cause to believe, and did believe, that it was impending; but that, before he could be acquitted on the ground of self-defense, the jury should believe that his cause for apprehension was reasonable on grounds established by the evidence, and, unless such facts were established by the evidence, the defendant could not be acquitted on that ground, though the jury believe the defendant really thought he was in danger; but that the law of self-defense did not arise in behalf of defendant if he voluntarily entered into a fight with Finnegan with the intent of wreaking his vengeance upon said Finnegan. The court, in instruction 9, told the jury: That neither the evidence in the case of former conviction of defendant, nor evidence tending to show that his general reputation for morality was bad, is any evidence that defendant is guilty of the offense charged; that such evidence was admitted solely as bearing upon the credibility of defendant as a witness.

J. H. Whitecotton and E. L. Alford, for appellant. Herbert S. Hadley and Frank Blake, for the State.

BURGESS, J.

At the December term, 1907, of the Monroe county circuit court, the defendant was found guilty of felonious assault with intent to kill, and his punishment assessed at a fine of $100 and imprisonment in the county jail for a period of three months. He appeals.

The testimony tended to prove on the 29th day of September, 1906, in a saloon at Stoutsville, Monroe county, the defendant shot and wounded one Towney Finnegan. Finnegan was about to leave the saloon, when the defendant and some others came in. The defendant called to him and said that he wanted to talk to him. Finnegan stopped, and the defendant walked up to him, and said: "I heard you said Montgomery whipped me easy up at Clapper." Finnegan replied that he did not know that he said anything about it, and that there was no need of their having any trouble over the matter; and just then, according to Finnegan's testimony, the defendant struck him with his left hand and put the other hand back to his hip pocket. Finnegan grasped the defendant's arms and pushed him back into the barroom, where the scuffie continued until the saloonkeeper, John Buckman, came out from behind the bar and separated the men, telling them that he wanted no trouble in his house. After the combatants were thus separated, and some six or seven feet apart, and while the saloonkeeper was holding the defendant, the latter pulled out his pistol and shot at Finnegan; the ball striking him in the neck, near the collar bone. After the shot, Finnegan, who was wounded but slightly, rushed over to the defendant and helped to hold him while his revolver was being taken away from him, and then Finnegan left...