State v. Temple

• Decision Date: 06 March 1906
• Citation: 194 Mo. 237,92 S.W. 869
• Parties: STATE v. TEMPLE.
• Court: Missouri Supreme Court

92 S.W. 869

194 Mo. 237

STATE v. TEMPLE.

Supreme Court of Missouri, Division No. 2.

March 6, 1906.

1. INFORMATION — VERIFICATION — INFORMATION AND BELIEF.

Under the express provisions of Rev. St. 1899, §§ 2477, 2479, an information by the prosecuting attorney may be verified on information and belief.

2. SAME—OBJECTIONS—WAIVER.

An objection that an information was not verified on the prosecuting attorney's knowledge was waived where the objection was not raised by a motion to quash.

3. CRIMINAL LAW—RECORD—SWEARING JURY.

Where the record of a criminal trial contained an entry after naming the 12 jurors, followed by a recital that they were "twelve good lawful men of the body of the county, * * * duly tried, impaneled and sworn to try the cause," etc., such entry was sufficient to show that the jury was actually sworn to try the case.

4. SAME—PRESENCE OF DEFENDANT — APPEAL —PRESUMPTIONS.

Where the record of a criminal trial recited that defendant was present and was arraigned in open court; that he entered his plea of not guilty; that his motion for continuance and change of venue were taken up and overruled; that thereupon the jury was selected, sworn, and on the same day returned their verdict—it sufficiently appeared that defendant was present when the verdict was received, under Rev. St. 1899, § 2610, providing that, when it appears that defendant was present at the commencement or any other stage of the trial, it shall be presumed on appeal, in the absence of evidence to the contrary, that he was present during the whole trial.

5. SAME—IRONS—IMPROPER USE.

Where accused was not manacled while his trial was actually in progress, he was not prejudiced by the fact that he was brought into court manacled from the jail, and was manacled again in the presence of some of the jurors preparatory to his being returned to the jail during an intermission.

6. HOMICIDE—ASSAULT WITH INTENT TO KILL.

Rev. St. 1899, § 1847, provides that every person who shall on purpose and of malice aforethought shoot at another with a deadly weapon or by any other means or force likely to produce death, or great bodily harm, with intent to kill, maim, ravish, or rob such person, or in an attempt to commit any other felony, etc., shall be punished by imprisonment. Held, that an information charging that defendant unlawfully, feloniously, on purpose, and of his malice aforethought, in and upon one G. did make an assault, and did then and there, feloniously, on purpose, and of his malice aforethought, shoot and strike him, the said G., in and upon the face and head with a certain revolving pistol then and there loaded with leaden balls, which defendant then and there in his hand held with intent the said G., on purpose and of his malice aforethought, to kill and murder, etc., sufficiently stated the offense defined by such section.

7. CRIMINAL LAW—INSTRUCTIONS — REASONABLE DOUBT.

An instruction that accused is presumed to be innocent of the offense charged, which presumption continues throughout the case until overcome by evidence showing him guilty beyond a reasonable doubt, and that, if the jury had a reasonable doubt of defendant's guilt, they must acquit him, but that such a doubt must be a substantial doubt founded on evidence, and not a mere possibility of defendant's innocence, was correct.

8. SAME—CONTINUANCE—DISCRETION.

The granting of a continuance in a criminal case rests largely within the discretion of the trial court.

9. SAME—ABSENCE OF WITNESS—DILIGENCE.

An application for a continuance of a criminal case for absence of a material witness, merely alleging that defendant had used due and proper diligence to locate the witness, but had been unable to do so until the present time, was defective for failure to state what diligence, if any, had been so used.

10. SAME—PROBABLE EFFECT OF TESTIMONY.

In a prosecution for assault with intent to kill, defendant, though represented by able counsel, made no effort to disclose on cross-examination of the state's witness that an alleged absent witness was present at the time of the assault, nor that the persons assaulted or any one else began the difficulty by assaulting defendant so as to compel him to shoot in self-defense, and defendant offered no testimony on his own behalf. Held, that the denial of a continuance, in order to enable defendant to procure a witness whom defendant alleged was present at the time of the assault, and would testify to such facts, was not an abuse of discretion.

Appeal from Circuit Court, Buchanan County; B. J. Casteel, Judge.

Sol Temple was convicted of assault with intent to kill, and he appeals. Affirmed.

Houston & Buckner and Jno. C. Moore, for appellant. The Attorney General and Rush C. Lake, for the State.

GANTT, J.

This is a prosecution begun by the prosecuting attorney of Buchanan county, Mo., by filing an information in the criminal court of that county charging that the defendant, with unlawfully, feloniously, on purpose, and of his malice aforethought, made an assault and shot and struck William P. Gibson, with a certain revolver loaded with gunpowder and leaden balls, on the 14th day of May, 1904. The defendant was duly arraigned and entered his plea of not guilty. On the 4th day of August, 1904, he made an application for a continuance, which was heard and overruled, and thereupon he made an application for a change of venue, which was denied on the ground that due notice had not been given to the prosecuting attorney. A jury was impaneled to try the case, and after hearing the evidence found the defendant guilty, and assessed his punishment at 10 years in the penitentiary. In due time the defendant filed his motions for new trial and in arrest of judgment, which were considered by the court and overruled. On the 18th day of August the defendant was sentenced in accordance with the verdict, from which sentence and judgment, the defendant has appealed to this court. There is practically no controversy as to the evidence in the case.

The testimony discloses the following facts: On the 14th day of May, 1904, in the afternoon, a man by the name of Wilkerson called upon Gibson, who was a police sergeant in the city of St. Joseph, to come to a livery barn with him and see whether or not a team in the barn, and which had been placed there by the defendant, answered the description of a team which had been advertised as having been stolen at Savannah, Mo., and of which the St. Joseph police officers had a description. In company with Wilkerson, the prosecuting witness, Gibson, went to a saloon in the neighborhood of the barn and asked the defendant, Temple, to show him the team, explaining to Temple that he (Gibson) was a police officer. Temple accompanied them to the barn, and on the way, at Wilkerson's request, Officer Grable joined them. Defendant, Temple, stepped into the stall of one of the horses and was engaged in untying it, when Gibson remarked, "Why this is not the team." And Temple, who was slow in backing out the horse, was addressed by Wilkerson, who said: "It takes you a long time to untie those horses. Why don't you get those horses out? It takes you a hell of a long time to untie those horses. Why don't you bring them out of there?" At about that time Wilkerson saw the defendant draw his gun (which was a 44-caliber self-acting revolver), and, throwing his arm over the neck of the horse, which was between the defendant and Gibson, Temple fired the revolver; the ball striking Gibson in the face, and so close was the revolver to Gibson that the powder burned his face. The defendant then turned his revolver upon Officer Grable, and the officer states in response to the question: "Q. What did you do? A. Well, just as soon as he shot Gibson, he throwed the gun right in my face, and I was standing like this, with my hands in my pockets, and just as he drawed it in my face I clinched it. Q. Is this the gun that was used there? A. Yes, sir; this is the gun. Now, as he drawed it, I caught it like that. I grabbed it just in that shape and clinched it with my thumb behind the hammer, and then holding it in this way, and then several times he would wrench it around and take hold with both hands and try to pull it off, but I clinched it here, and the old Nick himself could not pull it off." With the help of bystanders, Temple was finally subdued. The testimony shows that no charge was made against Temple. The request was made that he produce for inspection the horses he had for sale, and while in the pretended act of complying with Gibson's request he opened fire, shot Gibson and attempted to shoot Officer Grable. No testimony was offered by the defense. The facts in the case upon which this appeal is prosecuted will be noted in connection with the several propositions advanced by the counsel for the defendant to secure a reversal of the judgment.

1. The information is assailed because it was verified solely on the information and belief of the prosecuting attorney, and does not purport to be based upon his actual knowledge. Our statute (sections 2477, 2479, Rev. St. 1899) permits the verification of an information by the prosecuting attorney upon his information and belief, and the cases cited from other jurisdictions are not controlling authority on this point. Moreover, the information in this case was not challenged by motion to quash, and the defendant waived this point by not making his objection to the information on that ground prior to the trial of the case. State v. Brown, 181 Mo. 192, loc. cit. 226, 79 S. W. 1111.

2. It is objected that the record does not affirmatively show that the jury was sworn to try the case. This exception is based upon a misapprehension of what the record discloses. The entry of the record on this point is as follows: After naming the 12 jurors by name, it proceeds "twelve good, lawful men of the body of the county, who are duly tried, impaneled, and sworn to try the cause," etc. This...