State v. Reynolds

• Decision Date: 12 February 1895
• Citation: 29 S.W. 594,126 Mo. 516
• Parties: The State v. Reynolds, Appellant
• Court: Missouri Supreme Court

29 S.W. 594

126 Mo. 516

The State v. Reynolds, Appellant

Supreme Court of Missouri, Second Division

February 12, 1895

Appeal from Oregon Circuit Court. -- Hon. W. N. Evans, Judge.

Reversed and Remanded.

""James Orchard for appellant.

(1) The court should have given an instruction to the jury that they might find defendant guilty and assess his punishment at a fine or imprisonment in the county jail, or both such fine and imprisonment. See Revised Statutes, 1889, section 3950. It is the duty of the circuit court to instruct the jury on all the law arising in the case. ""Hardy v. State 7 Mo. 608. (2) It is the duty of the court in the trial of a criminal case to give proper instructions defining each crime of which, under the indictment, the defendant can be convicted, and of which there is evidence in the case whether asked for or not. ""State v. Branstetter 65 Mo. 149; ""State v. Palmer, 88 Mo. 568; ""State v. Brooks, 92 Mo. 543. (3) The defendant's testimony must be taken into consideration in determining what instructions should be given. If the defendant testifies to facts which reduce the offense, instructions must be given by the court appropriate to the offense, whether asked or not. ""State v. Tate, 12 Mo. 327; ""State v. Banks, 73 Mo. 592. (4) The defendant testified he had no ill-will until prosecuting witness struck him and commenced throwing the rocks, and his testimony warranted the instruction. If his testimony is such as to reduce the offense, the court must give instructions to meet his testimony. ""State v. Tate, 12 Mo. 327; ""State v. Banks, 73 Mo. 592. (5) It is error for the court to instruct the jury that they may return a general verdict of guilty without assessing the punishment, and that the court would assess the punishment. ""State v. Fox, 7 Mo. 502.

""R. F. Walker, Attorney General, and ""Morton Jourdan, Assistant Attorney General, for the state.

(1) The first assignment of error in defendant's motion for new trial is that he had not announced, ready for trial. He is contradicted, however, by the record, which recites that "both parties announced ready for trial." Inasmuch as allegations in motions for new trial do not prove themselves, but that entries of record are conclusive, defendant's assignment of error must be determined against him. ""State v. Welsor, 117 Mo. 582; ""State v. Foster, 115 Mo. 451. (2) The same is true of his second assignment of error, that he was not arraigned and did not plead prior to the jury being sworn. The record shows conclusively that he was arraigned and did so plead. (3) There was ample evidence upon which the court was authorized to submit to the jury the question of defendant's guilt or innocence, and the jury was certainly warranted in finding that the guilt of defendant had been shown beyond a reasonable doubt. The testimony shows beyond peradventure a most brutal and unprovoked assault, felonious in every element. (4) This court will only interfere where there is a total failure of proof, and where it is evident the jury were actuated and governed by prejudice or passion. The record will not indulge such an intimation in this case. ""State v. Cantlin, 118 Mo. 100; ""State v. Banks, 118 Mo. 117. The verdict is entirely in harmony with the law as declared by the court. (5) The law of self-defense was fully and correctly declared in instructions numbered 9 and 11, given by the court. (6) Defendant alleges "newly discovered evidence" in his motion for new trial. His motion is not verified by affidavit. He has alleged and shown no diligence. From the affidavits he has filed, it is evident that the testimony is merely cumulative -- nothing more. ""State v. Welsor, 117 Mo. 582.

OPINION

Gantt, P. J.

Defendant was indicted for assault with intent to kill one F. E. White, at the August term, 1890, of the Oregon circuit court. He was convicted at the August term, 1894.

The evidence introduced by the state tends to prove that appellant Reynolds made an assault on F. E. White with rocks, and finally struck at him with a knife, cutting his coat, vest and suspenders.

The testimony on the part of the defendant tends to prove the following facts: That Reynolds (the defendant) was working for the railroad company, and had obtained a ten days' lay-off; that on the day of the difficulty defendant met White, and White said, "Charley, you are fired;" defendant told him "all right," and both walked to the office, and White made out check for Reynolds' time and then asked Reynolds for the switch-key and coupler, who said they were at Mrs. Forsyth's, and said he would bring them down; he did go and get the switch-key and coupling knife, and started back with it, and met White on Mrs. Forsyth's porch, and then they both started toward the office together, and while they were going along, Reynolds said to White, he would like to know what he was discharged for, and also said he would like to have a clearance on leaving there, to show what he was fired for. White answered, "we don't want such people working for us." Reynolds said, "For us? ain't you working for wages same as I am?" White said, "I have control of firing or hiring you." Reynolds said, "You didn't hire me; Mr. Hammond hired me, and I would like to know...