State v. Smith

• Citation: 28 S.W. 181,125 Mo. 2
• Parties: The State v. Smith, Appellant
• Decision Date: 20 November 1894
• Court: Missouri Supreme Court

28 S.W. 181

125 Mo. 2

The State v. Smith, Appellant

Supreme Court of Missouri, Second Division

November 20, 1894

Appeal from Buchanan Criminal Court. -- Benjamin J. Casteel, Esq. Special Judge.

The sixth instruction given by the court and referred to in the opinion is as follows:

"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 can not acquit him on that ground."

Reversed and remanded.

M. G. & J. Moran for appellant.

(1) The evidence of what took place, and what the defendant said after Cook left, was no part of the res gestoe, and it was error in the court to admit such evidence. State v Snell, 78 Mo. 241; State v. Evans, 65 Mo. 574; State v. Umfried, 76 Mo. 404; Bins v. State, 57 Ind. 46. Wharton's Criminal Evidence, sec. 505; Hare on Discovery [2 Ed.], 151 and 152. (2) The evidence of the state impeaching the character of the defendant was incompetent, and the form of the questions admitted was well calculated to do the defendant an injustice. It is the established rule that evidence of bad general moral character may be given in the impeachment of a witness. This rule, however, is invariably coupled with the qualification that single and particular acts of moral delinquency can not be shown. Besides, in the case at bar, the state does not attempt to assail defendant's moral character. State v. Shields, 13 Mo. 336; State v. Hamilton, 55 Mo. 520; State v. Breeden, 58 Mo. 507; State v. Clinton, 67 Mo. 381; State v. Miller, 71 Mo. 590; State v. Grant, 79 Mo. 133; State v. Bulla, 89 Mo. 595; State v. Taylor, 98 Mo. 244. (3) The admission of the judgment of defendant's conviction for an assault and battery was incompetent, and did the defendant an incalculable injury. State v. Taylor, supra; State v. McGraw, 74 Mo. 573; Dickinson v. Dustin, 21 Mich. 561; People v. Reinhart, 39 Cal. 449; 2 Hale's Pleas of the Crown, 278; 1 Greenleaf on Ev., sec. 377. (4) The instructions on the doctrine of self-defense do not properly define the law in the case at bar. They utterly ignore the principle that the defendant had the right to act on appearances, although the appearances were false, and as a matter of fact, the defendant was not in any real danger. The evidence in the case at bar fully warranted this principle and it should have been given. State v. Umfried, 76 Mo. 405 and 408; Nichols v. Winfrey, 79 Mo. 544 and 546; Morgan v. Durfee, 69 Mo. 477; State v. Eaton, 75 Mo. 591.

R. F. Walker, Attorney General, and R. E. Culver, Prosecuting Attorney, for the state.

(1) The declaration made by the defendant immediately after the cutting was competent to go to the jury. (2) The instructions properly covered the law of the case. (3) The allegation of the defendant that the verdict was against the law and the evidence is without merit; the finding of the jury as to this and all other criminal cases will not be disturbed by this court, unless it be apparent that there was a total failure of proof, and that the jury were actuated by prejudice or passion. State v. Young, 24 S.W. 1038; State v. Banks, 118 Mo. 117; State v. Moxley, 115 Mo. 644; State v. Herman, 117 Mo. 629.

OPINION

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 second 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 second 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 "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 toward defendant, who also started to 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. Cook stood a moment and went out of the shop and thereupon witnesses testify that defendant said to Cannon, with an oath, "May be you want to take it up; I have fixed one of you and I would just as soon fix three or four more of you as not." Cook went to a livery stable near by and a physician was called who found him bleeding profusely from the wound. The various assignments will be considered in their order.

I. The statement of the defendant to Cannon was no part of the res gestoe and was not admissible as such, but it does not follow that it was altogether incompetent. It tended to prove the charge that defendant had assaulted Cook, and the language was such as tended to show much ill will. While a disconnected threat to stab Cannon would have been immaterial and irrelevant, when it is a part of an admission that defendant had stabbed Cook, it was competent, although it tended to prove another distinct offense.

II. There is no force in the point that Tullar was exempt from cross-examination when testifying in behalf of defendant as to his character. He was the defendant's witness when he was being examined on this subject, and, if he had made contradictory statements to the prosecuting attorney, it was entirely legitimate to call his attention thereto, and ask if h...