State v. Ruck

• Decision Date: 06 March 1906
• Citation: 92 S.W. 706,194 Mo. 416
• Parties: STATE v. RUCK.
• Court: Missouri Supreme Court

92 S.W. 706

194 Mo. 416

STATE v. RUCK.

Supreme Court of Missouri, Division No. 2.

March 6, 1906.

1. CRIMINAL LAW — APPEAL — RECORD AND PROCEEDINGS NOT IN RECORD — INSTRUCTIONS.

Where the original bill of exceptions on file in the office of the clerk of the circuit court did not contain the instructions, and there was no direction in the bill calling for their insertion by the clerk, the mere fact that the clerk of his own motion copied them into the record did not make them a part of the record, and the action of the trial court in giving and refusing instructions, not otherwise made a part of the record, cannot be reviewed.

2. SAME—BILL OF EXCEPTIONS—STATUTE—DUTY OF CLERK.

Under Rev. St. 1899, § 866, providing that it shall not be necessary, for the review of the action of any lower court, that the instructions shall be copied or set forth in the bill of exceptions filed in the lower court, provided the bill of exceptions so filed contains a direction to the clerk to copy the same, and the same are so copied, it is competent for the defendant in a criminal prosecution, in his bill of exceptions, to state that the court gave certain instructions and directed the clerk to insert them in the bill, but, unless defendant in making up his bill did call for the instructions given and refused, it was not for the clerk of his own accord to make the instructions a part of the record.

3. HOMICIDE—ASSAULT WITH INTENT TO MURDER —SUFFICIENCY OF EVIDENCE.

In consideration of whether there was sufficient evidence to justify the jury, in its conclusion of an assault with intent to murder, not only the nature of the weapon, but the physical strength of the person wielding it, the fact that the prosecuting witness was entirely off of his guard and not anticipating an assault, the nature and character of the blow, the fact that four men were united in an assault on one man, and the vicious motive inspiring the assault, must all be taken into account.

4. SAME—STATUTE—DEADLY WEAPON.

The language of the statute "shall assault or beat another with a deadly weapon, or by any other means or force likely to produce death or great bodily harm with intent to kill," does not require that the assault should have been made with a deadly weapon per se.

5. SAME—QUESTION FOR JURY.

It was for the jury to say, on a prosecution for assault with intent to murder, whether a heavy quart beer bottle in the hands of a powerful man was not likely to produce death or great bodily harm, when aimed at a vital part of the victim's body.

6. SAME—INTENT.

On a prosecution for assault with intent to murder, evidence examined, and held that whether the assault was made with intent to murder was a question for the jury.

7. INDICTMENT AND INFORMATION — ISSUES AND PROOF.

It is competent to prove that others not indicted conspired with the defendant in the indictment, to commit the offense charged.

8. CRIMINAL LAW—EVIDENCE—ACTS OF COCONSPIRATORS.

On a prosecution for assault with intent to murder, where the evidence already introduced tended to prove that three men were present and taking part in the assault, and that defendant had assaulted the prosecuting witness with a bottle, and the three men with defendant at the time of the assault were arrested a few moments afterwards in their flight, evidence was admissible to show that they were armed with the same character of weapons as that with which the assault had been committed.

9. SAME—TRIAL—PROVINCE OF COURT—COMMENT ON EVIDENCE.

A statement by the court of the grounds of its ruling as to the competency of evidence is not objectionable as a comment on the evidence.

10. SAME—IDENTITY OF ACCUSED—STANDING FOR IDENTIFICATION.

On a prosecution for assault with intent to murder, it was competent to permit the state to have the prosecuting witness identify the defendant as his assailant, and for that purpose to have the prisoner stand; the evidence showing that he was sitting behind his counsel at the time.

11. SAME—APPEAL—HARMLESS ERROR.

On a prosecution for assault with intent to murder, any error in permitting prosecuting witness to state, why he was carrying a weapon was harmless as to defendant.

12. HOMICIDE — EVIDENCE — DESCRIPTION OF WEAPON.

Permitting prosecuting witness to describe the bottle with which he was assaulted, and the other bottles which were found on the accomplices of defendant, was not error, merely because the state was not able to procure the particular bottle with which defendant struck witness, especially where it appeared that the bottle when last seen was in the hands of defendant, who fled presumedly with it in his hand, and was not arrested until a month later.

13. CRIMINAL LAW—OBJECTIONS TO EVIDENCE.

An objection to evidence, on the ground of immateriality, amounts to no objection at all.

14. SAME—IDENTIFICATION OF ACCOMPLICES.

On a prosecution for assault with intent to murder, permitting accomplices of defendant to be brought into court, to see if prosecuting witness could identify them as the men who were with defendant and taking part in the assault, was not error.

15. SAME—CORROBORATION OF CONFESSION.

It appeared that the general scheme and purpose for which defendant had gone to the city, where the assault took place, was to commit assaults on nonunion drivers during a teamsters' strike, and that the assault in question was committed on a nonunion hackman. Defendant was not arrested until a month after the assault, when he made a confession of his guilt in the presence of several police officers. Held, that the testimony of an officer in whose presence the confession was made was admissible to show that when arrested defendant told where he was rooming, and that the officer next day went to the room and found certain weapons there, some of which were in defendant's valise, which he identified as his; the weapons being of the character indicated by defendant's confession.

16. SAME—PRELIMINARY EVIDENCE AS TO VOLUNTARY CHARACTER.

The admission of a confession by defendant shown by preliminary examination, in the absence of the jury, to have been voluntarily made, was not erroneous, merely because the court refused to permit certain accomplices of defendant to testify that they had been threatened and statements extorted from them; no effort having been made to show that the alleged duress was exercised in the presence or with the knowledge of defendant, or that other accomplices were cognizant of any duress on the defendant.

17. SAME—APPEAL—QUESTIONS REVIEWABLE.

The question whether the court instructed the jury as to all the law covering all of the phases of the case cannot be raised on appeal, where all the instructions given by the court are not incorporated in the record.

18. SAME—ARGUMENT OF COUNSEL.

On a prosecution for assault with intent to murder, a statement of counsel for the state, in argument, that one of the persons with defendant, as they came down the street on which the assault was committed, proposed that they "would go after that scab," was justified by testimony of a police officer who heard defendant's confession, which was admitted in evidence, that defendant said that as they came down the street one of the party said, "We will go across and get that scab," or "We will go across there and try to get him."

19. SAME—STATUTE—COMMENTS OR FAILURE OF ACCUSED TO TESTIFY.

Under Rev. St. 1899, § 2638, providing that, if the accused shall not avail himself of his right to testify on the trial, it shall not be construed to affect the innocence or guilt of the accused, nor shall the same raise any presumption of guilt, nor be referred to by any attorney in the case, nor be considered by the court or jury before whom the trial takes place, where evidence of the state is uncontradicted, it is not error for counsel for the state to allude to it as "undenied, undisputed by no living or unliving witness," though defendant did not testify.

20. SAME—OBJECTION TO REMARKS OF COUNSEL.

An objection to remarks of counsel, in argument, "We object to that statement under the law," is too indefinite, where counsel had made a number of statements, and it would have been difficult for the court to have pointed out the specific statement to which the objection alluded.

Appeal from St. Louis Circuit Court; Robert M. Foster, Judge.

Ernest Ruck, alias John Miller, alias The Soldier, alias Whitney, was convicted of assault with intent to kill, and he appeals. Affirmed.

Daniel L. Cruice and S. S. Bass, for appellant. The Attorney General, John Kennish, Thos. B. Harvey, and Walter H. Saunders, for the State.

GANTT, J.

At the April term, 1904, of the circuit court of the city of St. Louis, the assistant circuit attorney filed an information, charging the defendant, Ernest Ruck, with the crime of assault with intent to kill on purpose and with malice aforethought, upon one Basil Rutherford, at said city, on the 23d day of February, 1904. The defendant was duly arraigned, and entered his plea of not guilty. At the same term he was put upon his trial before a jury and convicted, and his punishment assessed at two years in the penitentiary. Motions for a new trial and in arrest of judgment was filed, heard, and overruled and exceptions saved, and thereupon the defendant was sentenced in accordance with the verdict, and from that sentence appealed to this court.

On the trial no evidence was offered on behalf of the defendant, and the testimony on the part of the state tended to prove the following facts: During the months of January and February, 1904, in the city of St. Louis, the union carriage and hack drivers were engaged in a general strike. Thomas Wand was then the proprietor of a livery stable in said city, and, on account of the strike, his carriage drivers had quit his employ. Basil Rutherford, the prosecuting witness, had been in the city but a few months, and in the latter part of January, 1904, while the strike was on, accepted employment...