State v. Sovern

• Decision Date: 12 February 1910
• Citation: 225 Mo. 580,125 S.W. 769
• Parties: STATE v. SOVERN.
• Court: Missouri Supreme Court

125 S.W. 769

225 Mo. 580

STATE v. SOVERN.

Supreme Court of Missouri, Division No. 2.

February 12, 1910.

1. INDICTMENT AND INFORMATION (§ 119) — SURPLUSAGE — INFORMATION — ASSAULT WITH INTENT TO KILL.

Under Rev. St. 1899, § 1847 (Ann. St. 1906, p. 1277), providing that one who shall on purpose and of malice aforethought shoot at, or stab another, or assault or beat another, with intent to kill, shall be punished etc., an information charging assault with intent to kill need not allege the infliction of wounds, but such allegation, if made, may be treated as surplusage under section 2535 (page 1509) — statute of jeofails — providing that no information shall be

held invalid for any surplusage or repugnant allegations, where there is sufficient matter alleged to indicate the crime.

2. INDICTMENT AND INFORMATION (§ 161) — AMENDMENT — ASSAULT WITH INTENT TO KILL — INFORMATION.

Since under Rev. St. 1899, § 1847 (Ann. St. 1906, p. 1277), an information charging assault with intent to kill need not allege the infliction of wounds, where the information wrongfully alleged the infliction by accused of wounds on himself, it was proper to permit it to be amended so as to substitute the name of the prosecuting witness for that of accused.

3. CRIMINAL LAW (§ 261) — REARRAIGNMENT — NECESSITY — AMENDMENT OF INFORMATION.

Where the information was after arraignment amended in an immaterial matter, it was not necessary to rearraign accused under the amended information.

4. CRIMINAL LAW (§ 1151) — APPEAL — DISCRETION OF TRIAL COURT — CONTINUANCE.

The granting of continuances in criminal cases rests to some extent in the discretion of the trial court, and its action will not be interfered with on appeal unless the record shows that such discretion was improperly, unsoundly, or arbitrarily exercised.

5. WITNESSES (§ 359) — IMPEACHMENT — COMPETENCY OF IMPEACHING EVIDENCE — CONVICTION OF CRIME.

Under Rev. St. 1899, § 4680 (Ann. St. 1906, p. 2549), providing that the conviction of a witness for a criminal offense may be proved to affect his credibility, either by the record or by his own cross-examination, on which he must answer any question relevant to that inquiry, the proof of conviction must be by competent evidence, and hence testimony of a witness who stated in a general way that prosecuting witness had been fined two or three times was inadmissible.

6. CRIMINAL LAW (§ 1141) — APPEAL — BURDEN TO SHOW ERROR.

On appeal in a criminal case, the burden to show error is on appellant.

7. HOMICIDE (§ 339) — APPEAL — REVERSIBLE ERROR.

In a trial for assault with intent to kill, the exclusion of evidence as to what accused's wife had told him regarding what transpired between her and prosecuting witness when she told him to get off the place, and testimony as to such witness having a gun, offered to show threats against accused, was not reversible error.

Fox, J., dissenting in part.

Appeal from Criminal Court, Jackson County; E. E. Porterfield, Judge.

Charles Sovern was convicted of assault with intent to kill, and appeals. Affirmed.

The defendant in this cause has brought his case to this court by appeal from a judgment of the circuit court of Jackson county, Mo., convicting him of an assault with intent to kill one Frank W. Lander. The information as amended, which was duly verified, upon which the defendant was tried, omitting formal parts, thus charges the offense against the defendant: "Now comes Isaac B. Kimbrell, prosecuting attorney for the state of Missouri in and for the body of the county of Jackson, and upon his oath informs the court that Charles Sovern, whose Christian name in full is unknown to said prosecuting attorney, late of the county aforesaid, on the 6th day of March, 1908, at the county of Jackson, state of Missouri, in and upon one Frank W. Lander feloniously, willfully, on purpose and of his malice aforethought did make an assault, and the said Charles Sovern, with a certain weapon, to wit, a pistol loaded with gunpowder and leaden balls, then and there feloniously, willfully, on purpose and of his malice aforethought did shoot off at, against and upon the said Frank W. Lander, then and there giving to the said Frank W. Lander in and upon the head and body of him, the said Frank W. Lander, with the pistol aforesaid, two wounds, with the felonious intent then and there, him, the said Frank W. Lander, feloniously, willfully, on purpose and of his malice aforethought to kill and murder, against the peace and dignity of the state."

During the course of the opinion we will give attention to the legal propositions suggested by counsel for appellant as to the amendment of the information and the arraignment and rearraignment of the defendant upon the charge preferred against him.

Upon the trial of this cause the testimony introduced by the state substantially tended to prove that the defendant and one Lander, the prosecuting witness, were, at the time of the assault, and for some time prior thereto had been, competitors in business on East Fifteenth street, Kansas City, Mo. They occupied adjoining buildings. On the afternoon of March 6, 1908, Lander was standing in front of his place of business engaged in conversation with an insurance agent when defendant emerged from his store and ordered Lander to "get away from there." Lander told defendant he was "not bothering him." Defendant at once drew his pistol and commenced firing. Lander had made no demonstration of any kind. The first and fourth shots went wild, the second passed through the back of Lander's neck, and the third, fired while Lander was retreating, struck him in the back near the left shoulder blade, inflicting a dangerous wound. Lander was unarmed. There was also evidence tending to show that defendant, on previous occasions, had threatened to kill Lander, and that immediately before the shooting he came into his store, after passing Lander on the walk, declared that "if he comes over on my place I will shoot him," procured a pistol from his desk, stepped out near where Lander was standing, and, after the conversation detailed above, began firing.

The evidence on the part of the defendant tended substantially to show that the prosecuting witness had frequently, in conversation with third parties, threatened defendant's life, accompanying his threats with opprobrious epithets. These threats were communicated to defendant. Defendant and his wife testified to numerous threats made by Lander against defendant's life in their presence. They also testified that Lander, at various times, applied indecent epithets to Mrs. Sovern. Defendant's account of the shooting is, in substance, that earlier in the day a difficulty had occurred between Lander and defendant. As a result of this and previous difficulties, defendant, after consulting his attorney, concluded to move across the street, and was engaged in moving when the shooting occurred. He had been down in the city on some errand in the afternoon, and upon his return was informed by his wife that Lander had been cursing her during his absence. Defendant procured his pistol, went out where Lander was, and told him to get off his (defendant's) place. Defendant declared that Lander responded to this by saying, "Go to hell, you Irish son of a bitch," and "ran his hand in his pocket like he was going to pull a gun, and I pulled a gun and shot him." Defendant testified that the reason he shot was he thought Lander was going to shoot him. With respect to Lander's effort to draw a pistol, defendant was corroborated by his wife, and to some extent by his stepson. Defendant, when asked to explain his shooting Lander in the back, replied: "How did I know but what he was going to turn and do some more." At one point in his cross-examination, when asked why he shot Lander, he answered: "Because I didn't want him lurking around by place. I was paying rent for that place." Asked then if he shot because he "didn't want Lander lurking around his place," he replied, "He had cussed me and my wife and my whole family, and I didn't think he had any business running my business while I was downtown." Defendant denied having threatened Lander. He explained a statement made shortly after the shooting, to the effect that Lander had shot at him first, by saying he was so nervous at the time that he "hardly knew what happened."

Defendant offered evidence that Lander's general reputation for peace, quietude, honesty, and veracity was bad, and that his own was good. In rebuttal the state offered evidence to the effect that Lander's general reputation for truth and veracity, peace, and quietude was good.

Other evidence in rebuttal was to the effect that defendant, at the time of making the statement referred to, just after the shooting, was under the influence of liquor. Lander denied the threats against defendant attributed to him.

The record further discloses that prior to the commencement of the trial defendant filed his application for a continuance, which was by the court overruled, to which ruling of the court proper exceptions were preserved.

At the close of the evidence the court instructed the jury upon all of the subjects to which there was any testimony applicable, and the cause was submitted to them, and they returned a verdict finding the defendant guilty as charged, and assessed his punishment at imprisonment in the penitentiary for a term of three years. Timely motions for new trial and in arrest of judgment were filed and by the court taken up and overruled. Judgment and sentence were entered in conformity to the verdict, and from this judgment the cause is brought to this court by appeal, and the record is now before us for consideration.

J. M. Cole and Lowrance & Casey, for appellant. E. W. Major, Atty. Gen., and Jas. T. Blair, Asst. Atty. Gen., for the State.

FOX, J. (after stating the facts as above).

The record in this cause discloses numerous complaints respecting the action of the...