State v. Thornhill

• Decision Date: 17 November 1903
• Citation: 177 Mo. 691,76 S.W. 948
• Parties: STATE v. THORNHILL.
• Court: Missouri Supreme Court

76 S.W. 948

177 Mo. 691

STATE v. THORNHILL.

Supreme Court of Missouri, Division No. 2.

November 17, 1903.

CRIMINAL LAW — FELONIOUS ASSAULT — EVIDENCE — SUFFICIENCY — TIME OF INTRODUCTION — RES GESTÆ.

1. Evidence held sufficient to support a conviction for a felonious assault.

2. The refusal to charge that the defendant, accused of felonious assault, was not responsible for the acts of a bystander unless they acted pursuant to previous agreement, was not error where the point was fully covered by another portion of the charge.

3. In a prosecution for felonious assault it is within the discretion of the court to admit in evidence the clothes of the prosecuting witness after the state has closed its case, where they have been identified, and testimony concerning them introduced in the case in chief.

4. Evidence that a witness for the defense in a prosecution for felonious assault undertook to prevent a witness for the state from appearing in the case was properly admitted where the court by the charge limited its application to the weight to be given the testimony of the witness making the attempt.

5. Evidence as to the acts of a third person, who took part in the affray in which a felonious assault was alleged to have been committed by defendant, was admissible as part of the res gestæ.

Appeal from Circuit Court, Wright County; Argus Cox, Judge.

Lee Thornhill was convicted of a felonious assault, and appeals. Affirmed.

Frank, McClellan & Shuck, for appellant. E. C. Crow and C. D. Corum, for the State.

FOX, J.

The defendant in this case was charged with a felonious assault made upon one Joe Broyles on the 24th day of December, 1901, in Wright county, Mo. The evidence tends to show that the defendant, the prosecuting witness, and a number of other persons had congregated at the Nation Schoolhouse, in Wright county, on the evening before Christmas, for the purpose of attending literary exercises being conducted there, and for the purpose of observing the distribution of presents from a Christmas tree. The defendant and those with whom he came, and who remained after he left at the entertainment, was somewhat under the influence of liquor, and he had not been long in the house when he began to talk loudly and rudely, and the constable of the township requested one John Phillips, who was a friend of the defendant, to urge the defendant to remain quiet or leave the house. It seems that the defendant and the prosecuting witness had some words, called for, probably, on account of the somewhat boisterous conduct of the defendant. The friend of the defendant asked him to leave the room, which the defendant did. He had scarcely left the building when the prosecuting witness in this case also left. The prosecuting witness states that it was his intention to go home. The evidence on behalf of the state tends to show that as soon as the prosecuting witness stepped outside the door where the defendant and his friend Phillips then were, the defendant, without provocation or excuse of any kind, began striking the prosecuting witness with a knife, inflicting some wounds on the body of the prosecuting witness, which bled profusely. The testimony on behalf of the defendant tends to show that when the prosecuting witness came out of the house he reached in his pocket and drew forth a knife and assaulted the defendant, and that thereupon the defendant drew his own knife, and that whatever injuries he inflicted upon the prosecuting witness he inflicted in the necessary and proper defense of his person. It is further shown on behalf of defendant that the prosecuting witness had a pistol in his pocket at the time, but there is no evidence tending to show that the prosecuting witness removed the pistol from his pocket during the difficulty. One witness states that Broyles drew his pistol partly out of his pocket as he started out of the door. The defendant was not wounded, notwithstanding the violent assault which he says the prosecuting witness made upon him. Upon the testimony, as introduced, the court fully instructed the jury, and they returned a verdict of guilty, fixing the punishment at two years in the penitentiary. From this judgment of conviction the defendant appeals.

The appellant in this cause has failed to file in this court any statement, brief, or assignment of errors suggestive of any errors committed by the trial court; hence we are left to an examination of the record to ascertain what was done in the disposition of this cause. We have given the record a careful examination, and find that the testimony detailing this difficulty, which resulted in the wounding of the prosecuting witness at a Christmas tree entertainment, is no exception to the general rule — it is conflicting. The state introduced the prosecuting witness, together with a number of other witnesses, whose testimony fully supported the charge contained in the...