State v. Shipley

• Decision Date: 19 May 1903
• Citation: 74 S.W. 612,174 Mo. 512
• Parties: STATE v. SHIPLEY.
• Court: Missouri Supreme Court

74 S.W. 612

174 Mo. 512

STATE v. SHIPLEY.

Supreme Court of Missouri, Division No. 2.

May 19, 1903.

ASSAULT—REMARKS OF PROSECUTING ATTORNEY —INSTRUCTIONS.

1. Though defendant's counsel in argument says that "defendant is a man of good character; not a witness has been produced to show his character was not good," it is reversible error for the prosecuting attorney in his closing argument to say that "defendant had a right to bring in his neighbors to prove his good character, and * * * the reason he did not bring them in to so testify was because he knew they would not so testify," which is not cured by the court saying that this is not a fair line of argument; that the prosecuting attorney might explain to the jury why he did not produce witnesses as to defendant's character, but

that he had no right to comment on defendant's not offering evidence as to good character, and that the jury should disregard such remarks.

2. Under the statute providing that courts may instruct the jury in writing on any point of law arising in the case, it is error to instruct them orally as to the law relative to offering evidence of good character, where the prosecuting attorney comments on defendant's not having offered such evidence.

3. On a prosecution for a felonious assault with a rock, an instruction on simple assault should also be given, it being for the jury to determine whether the rock was a deadly or dangerous weapon.

Appeal from Circuit Court, Polk County; Argus Cox, Judge.

Fred Shipley was convicted of a felonious assault, and appeals. Reversed.

Johnson & Sea, for appellant. Edward C. Crow, Atty. Gen., and C. D. Corum, for the State.

GANTT, P. J.

This is a prosecution by information for a felonious assault in Polk county. The information is in approved form, and we discover no error in the record proper, though it is inartistically made up. The assault seems to have been one of the usual concomitants of a street fight at a saloon. The defendant and Ritter, the person assaulted, had been in the saloon, drinking more or less. There is no evidence of any previous ill will or bad feeling between them. As they came out of the saloon that night, two boys or young men were engaged in a fight, and had fallen or were on the ground, and Ritter parted them. Why defendant should have regarded this as an affront the evidence does not clearly indicate, but it seems some words passed between them, and defendant picked up a rock and threw it, and hit Ritter over the eye. Defendant was convicted, and sentenced to the penitentiary for two years. Two grounds are assigned for a reversal of the judgment, and we will examine them in the order of their assignment.

During the argument the counsel for defendant said: "The defendant is a man of good character. Not a witness has been produced to show his character was not good." When the prosecuting attorney came to make his closing argument, he said: "Fred Shipley, the defendant, had a right to bring in his neighbors to prove his good character; and, gentlemen of the jury, the reason he did not bring them in to so testify was because he knew they would not so testify." Here defendant objected, and excepted to these remarks. The court thereupon stated: "Mr. Skinker, this is not a fair line of argument. You might explain to the jury why you did not produce witnesses as to defendant's character, but you have no right to comment on the fact that the defendant did not offer evidence as to his good character, and the jury will disregard that part of Mr. Skinker's argument. Now, gentlemen of the jury, I will explain to you the law on this...