State v. Terry
| Decision Date | 05 March 1907 |
| Citation | 100 S.W. 432,201 Mo. 697 |
| Parties | STATE v. TERRY. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Christian County; John T. Moore, Judge.
John W. Terry was convicted of a felonious assault, and he appeals. Affirmed.
J. J. Gideon and G. W. Thornberry, for appellant. The Attorney General and N. T. Gentry, for the State.
Upon an information filed by the prosecuting attorney of Christian county the defendant was at the February term, 1906, of the circuit court of said county, convicted of a felonious assault upon one William Bilyeu, and his punishment fixed at two years in the penitentiary. After filing motions for a new trial and in arrest of judgment, which were overruled, defendant appealed.
The state's evidence tended to prove that bad feeling had been existing between the defendant and the prosecuting witness, William Bilyeu, due to the fact that Bilyeu and others had been using a road or passway said to have been across a portion of defendant's land. Some of the witnesses claimed that this was a public road, and others thought that the same was on defendant's ground; but all admitted that the ground and roadway were uninclosed and used by the public as a passway. Some days prior to the date of the commission of the alleged offense the defendant stated to one Proctor that he wanted Bilyeu to keep off of his (defendant's) premises, and that, if he did not, he would cut his liver out. To one Spradley the defendant stated that, if he ever caught Bilyeu down there again, he "aimed to paralyze him." This was some two weeks before the difficulty. The state's evidence tended to prove that Bilyeu on Sunday morning, April 9, 1905, was going to church, and passing along this road on horseback. He met defendant, walking towards him, in company with a woman that he afterwards recognized as defendant's first wife. When only a short distance from Bilyeu, the defendant threw two rocks at him. The first rock missed him, and the second rock struck Bilyeu on the hand. Defendant then ran up with a knife in his hand, and cut Bilyeu on the arm and hand. Bilyeu was holding his bridle reins in his hand, and the bridle reins and gloves, which were offered in evidence, were also cut in one or two places. Defendant, after striking Bilyeu five times and cutting him three times, followed him about 100 yards and used abusive and profane language. As a result of this cutting, Bilyeu was confined to his house some two weeks. Bilyeu was positive that he said nothing to defendant at the time of and just prior to the assault, and made no efforts to throw rocks at defendant or to ride his horse over defendant, nor threaten to kill defendant. Bilyeu also testified that defendant had never ordered him to keep off of that roadway, nor sent him word by any one to that effect. Shortly after this difficulty defendant met James Bilyeu near Bull creek, and told him of a fight he had had with William Bilyeu, and asked the witness to go up and see if William was badly hurt. Defendant stated that he had cut him on the arms and stomach, and that at the time of the cutting William Bilyeu was on his horse. To Marion Clevinger defendant stated that he guessed he had cut one, and, if there had been two or more, he would have been whittling yet. Defendant exhibited his knife, and went over to the grindstone to sharpen it some. In further speaking of the difficulty, defendant said that he had let his knife into him and showed the distance on the knife blade that it stuck in Bilyeu. He further said Bilyeu was on horseback during the difficulty. Defendant made no complaint to this witness of any bruises or scratches on his body. To the witness William Dye defendant said that he had just had a little racket or scrap, and, if he had had a gun, he would have killed two more.
The defendant's evidence tended to show that he met Bilyeu on the roadway which crosses defendant...
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