State v. Smith

• Decision Date: 20 November 1894
• Citation: 125 Mo. 2,28 S.W. 181
• Parties: STATE v. SMITH.
• Court: Missouri Supreme Court

28 S.W. 181

125 Mo. 2

STATE v. SMITH.

Supreme Court of Missouri, Division No. 2,

November 20, 1894.

CRIMINAL LAW — EVIDENCE — ADMISSIONS — CROSS-EXAMINATION — IMPEACHMENT — INSTRUCTIONS.

1. In a prosecution for assault with intent to kill, defendant's statement, "I have fixed one of you, * * * and I would just as soon fix three or four more of you as not," made immediately after committing the alleged offense, is not admissible as part of the res gestae, but is admissible as an admission that defendant committed the deed, and also as tending to show ill will.

2. A witness testifying as to defendant's character is not exempt from cross-examination concerning contradictory statements made by him to the prosecuting attorney before the grand jury.

3. Evidence tending to impeach the moral character of defendant, after he has testified, is admissible.

4. Evidence of a prior conviction for an assault and battery is inadmissible to impeach defendant.

5. Where the instructions apply to every phase of appearance of supposed danger raised by the evidence, the court is not required to instruct generally that defendant had the right to act on appearances.

6. To charge, "If you believe from the evidence that defendant invited and brought on the difficulty for the purpose of stabbing Cook, then there is no self-defense, and you cannot acquit him on that ground," in the absence of any evidence to that effect, is erroneous.

Appeal from criminal court, Buchanan county; Benjamin J. Casteel, Special Judge.

Thomas Smith was convicted of an assault with intent to kill, and he appeals from the judgment. Reversed.

The court, over the objection and exception of defendant, gave the following instruction on the part of the state: "(6) You are further instructed that the defendant had no right to provoke the difficulty with Cook, or put himself in the way of being assaulted, for the purpose of stabbing or killing said Cook; and, if you believe from the evidence that defendant invited and brought on the difficulty with Cook for the purpose of stabbing Cook, then there is no self-defense in the case, and you cannot acquit him on that ground."

M. G. & J. Moran, for appellant. R. F. Walker, Atty. Gen., and R. F. Culver, for the State.

GANTT, P. J.

The defendant in this case was charged with an assault with intent to kill Charles Cook, in the city of St. Joseph, on the 2d day of November, 1892. Charles Cook, the prosecuting witness, was a blacksmith in the employment of one Cannon, as a horseshoer. The defendant had, previous to the altercation with Cook, been in the employment of William Tullar, but had either quit voluntarily or been discharged, and on the 2d day of November, 1892, had come to Tullar's office, adjoining the shop, to make a settlement with Tullar, who had that day sold the shop to Cannon. While there, Cook, who was engaged in shoeing a horse, asked where the No. 4 shoes were kept, and the defendant volunteered the statement that they were in the No. 4 box. Cook replied that "he had looked there, and they were not"; that "he guessed he knew a No. 4 shoe when he saw it." Whereupon, defendant replied that "he had seen smart sons of bitches around there before." "You would not know a front shoe from a hind shoe, if you saw it." To this, Cook replied "You, nor no other man, can call me a son of a bitch," and started towards defendant, who also started towards Cook. They met, and struck at each other. The preponderance of evidence supports the claim that Cook struck the defendant in the mouth with his fist, and knocked him back against the office door, which prevented his falling, and that defendant then stabbed Cook in the left breast, about an inch and a half below the nipple, and about three inches from the breast bone, penetrating the cavity. There is much conflict as to whether Cook had a horseshoe in his hand, and which hand, if either, when he assaulted defendant. Cook denies having it when he struck, but says he attempted to pick up a horseshoe after he was stabbed, and that defendant told him to drop it, or he would kill him....