State v. South

• Decision Date: 07 November 1898
• Parties: STATE v. SOUTH.
• Court: Missouri Supreme Court

47 S.W. 790

145 Mo. 663

STATE v. SOUTH.

Supreme Court of Missouri, Division No. 2.

November 7, 1898.

CRIMINAL LAW — EVIDENCE — CROSS-EXAMINATION — NEW TRIAL — JUROR.

1. Where there is a mistrial, followed by a second trial, the proceedings on the first trial should not be copied into the transcript.

2. The wife of the accused, who testified that on the day the crime was committed she rode to town with a certain person, may be asked, on cross-examination, whose wagon it was they rode in.

3. On the hearing of a motion for a new trial there were affidavits of two persons that one of the jurors had stated that accused was sure to go to the pen. The juror denied making the statement, and other witnesses testified to the bad character of the affiants for truth and veracity. Held, that the charge was not sustained.

Appeal from circuit court, Newton county; J. C. Lamson, Judge.

William South was convicted of assault with intent to kill, and appeals. Affirmed.

George Hubbert, J. W. Brunk, and Cravens & Cravens, for appellant. Edward C. Crow, Atty. Gen., and W. W. Graves, for the State.

GANTT, P. J.

The defendant was jointly indicted with John Tate for felonious assault upon William Meadows. The first count charged an assault with intent to kill, and the second an assault with intent to rob. A severance was granted. Plea of not guilty was duly entered, and, on a trial before a jury, defendant was convicted on the first count, and his punishment fixed at three years in the penitentiary. Motions for new trial and in arrest were filed in due time, heard, and overruled. Defendant appeals.

The record is voluminous, but, upon careful inspection, we discover no error in the impaneling of the grand or petit jury. The indictment is sufficient, and the arraignment regular. There was a mistrial, and the clerk has erroneously copied the proceedings on the first trial into his transcript. These records are sufficiently large when all unnecessary matter is excluded. The verdict is full and responsive. There was ample direct evidence tending to show that defendant shot Meadows in the house of the latter, without any provocation; that defendant entered the house of Meadows, and ordered him to throw up his hands, and, as Meadows jumped up, immediately fired at him, the ball striking him under his right jaw, and coming out at the back of his neck. The defense rested upon the claim that some person other than defendant committed the assault, and that defendant had not been identified.

The errors relied on to reverse the judgment are...