The State v. Bond

• Decision Date: 12 December 1905
• Citation: 90 S.W. 830,191 Mo. 555
• Parties: THE STATE v. THOMAS BOND, Appellant
• Court: Missouri Supreme Court

90 S.W. 830

191 Mo. 555

THE STATE v. THOMAS BOND, Appellant

Supreme Court of Missouri, Division Two

December 12, 1905

Appeal from Ozark Circuit Court. -- Hon. Argus Cox, Judge.

Affirmed.

George W. Boone for appellant.

(1) The court erred in refusing to instruct on the question of alibi. State v. Koplan, 167 Mo. 298; State v Taylor, 118 Mo. 153; State v. Adair, 160 Mo 391; State v. Hale, 156 Mo. 102; State v McGinnis, 158 Mo. 105. (2) The court erred in refusing to give the instruction asked by the defendant in the nature of demurrer to the evidence. (3) The court erred in refusing instruction 2, asked by the defendant. This instruction properly defined reasonable doubt, and the jury should have been instructed as to its meaning in a legal sense. Kelley, Criminal Law, sec. 397; Hughes, Criminal Law, sec. 2488; State v. Clark, 147 Mo. 20. (4) The court erred in overruling defendant's application for a continuance. The statute was fully complied with, and all the necessary requirements of the law appeared in the application. Sec. 2600, R.S. 1899. (5) The information is fatally defective; therefore, the motion in arrest of judgment should have been sustained. The information fails to allege that the assault was feloniously made. State v. Clayton, 100 Mo. 516; State v. Norman, 136 Mo. 1.

Herbert S. Hadley, Attorney-General, and John Kennish, Assistant Attorney-General, for the State.

(1) The court did not err in overruling defendant's application for a continuance. The application was based upon the the ground of absent witnesses and the affidavit fails to state that the defendant is "unable to prove such facts by any other witness whose testimony can be as readily procured," or "that the application is not made for vexation or delay merely, but to obtain substantial justice on the trial of the cause." Such an omission renders the application fatally defective. State v. Howell, 117 Mo. 307; State v. Alred, 115 Mo. 471; State v. Heinze, 45 Mo.App. 403. (2) One of the errors complained of in the motion for a new trial is the failure of the court to give an instruction on the question of alibi. Although the defendant did not ask an instruction on this subject, he did except at the time to the action of the court in not instructing the jury on all the law of the case. But, there was no evidence before the jury tending to establish this defense. 1 Bish. New Cr. Proc., sec. 1061. (3) Where the instructions fully cover the case, it is not error to refuse defendant's instructions. State v. Frank, 159 Mo. 535; State v. Nelson, 166 Mo. 191; State v. Bradford, 156 Mo. 91. (4) The information charges the offense in the language of the statute and is sufficient. It is true that in charging the assault the word "feloniously" is not used in the information, but under section 1847, Revised Statutes 1899, upon which this prosecution is based, it is not necessary to charge an assault, where the criminal act charged is the shooting at or stabbing another with intent to kill. State v. Phelan, 65 Mo. 547; State v. Doyle, 107 Mo. 40; Bish. New Cr. Proc., sec. 654. (5) The court did not err in refusing defendant's instruction in the nature of a demurrer to the evidence. State v. DeWitt, 152 Mo. 76; State v. Williams, 149 Mo. 496.

OPINION

BURGESS, P. J.

On the 31st day of August, 1903, there was filed in the office of the clerk of the circuit court of Ozark county, by the prosecuting attorney of said county, an information in which it was charged that Thomas Bond and Riley Bond, on or about the 15th day of October, 1901, at said county, did of their malice aforethought shoot and wound, with intent to kill, one D. B. May. Thereafter, at the February term, 1904, of said court, on motion of defendants, a severance was granted them. On the 24th day of November, 1904, the defendant, Thomas Bond, was put upon his trial before the court and jury, found guilty as charged in the information, and his punishment fixed at two years' imprisonment in the penitentiary. After the usual motions for a new trial and in arrest were filed and overruled, defendant appealed.

At the time of the shooting, D. B. May and Riley Bond, father of the defendant, lived about two and a half miles apart. The defendant and his wife were then living with defendant's father, but defendant himself for a short time prior to the difficulty had been away from home. Bad feeling had existed between the defendant and May for some time. About two months before the day of the alleged offense the defendant and May had a difficulty in which the defendant stabbed May in the back with a knife. Upon the 15th day of October, 1901, May had sufficiently recovered from the wound inflicted by the defendant to be out. He had gone on horseback across the White river on business on the morning of that day, and while recrossing the river upon his return, when about twenty steps from the bank in the direction he was going, his horse stumbled and at the same time he was shot in the back from the rear, the ball passing entirely through his body. About noon of the same day a witness by the name of Hayes, who did not then know the defendant, rode up to Riley Bond's house, fed his horse and got dinner. As he was riding up and when within twenty yards of the house he saw a young man come to the door with a rifle. The man immediately disappeared and Hayes did not see him again that day. While at dinner Hayes saw two rifles, a Winchester and a muzzle loading rifle, lying on the bed. The defendant had purchased a new Winchester rifle a short time before that day. Riley Bond informed Hayes that day of the shooting of May that morning. Hayes afterwards picked out the defendant from a number of men in the court house in said county as the man he saw with the rifle at Riley Bond's, and and at the trial he testified that he looked like the man he saw there at that time. The defendant was seen in the neighborhood shortly before the time of the shooting. On the evening of the 16th day of October, the day after May was shot, the defendant went to the house of his brother-in-law, Frank McMillin. He told McMillin of the shooting of May the morning of the day before, and stated that if May's horse had not stumbled when the trigger was pulled he would never have got out of the creek.

Defendant was a witness in his own behalf and denied the shooting and also denied making the statement about May's horse stumbling, as testified to by witness McMillin.

There was evidence tending to show that witnesses May and Hayes had made statements out of court in conflict with their testimony at the trial. Evidence was also introduced tending to prove that the defendant had left his father's place and the neighborhood in which the crime was committed and that he was seen near West Plains the day after the commission of the offense charged. The defendant himself did not testify upon that subject. The defense was a plea of not guilty.

At the close of the evidence for the State and again at the close of all the evidence the defendant requested the court to give an instruction in the nature of a demurrer to the evidence, which instruction the court refused to give.

The court instructed the jury as follows:

"1. The court instructs the jury that if you believe from the evidence that the defendant, at the county of Ozark and State of Missouri, at any time within three years next before the filing of the information in this case, did on purpose and of his malice aforethought, shoot D. B. May with the intent to kill said D. B. May, or do him some bodily harm, you will find the defendant guilty as charged and assess his punishment at imprisonment in the penitentiary not less than two years nor more than ten years.

"2. The term 'malice' does not mean mere hatred or ill-will, as the term is commonly understood, but it means the intentional doing of a wrongful act, and signifies that state of the mind or disposition that would prompt one man to take the life of another, or do him some great bodily harm, without just cause or excuse. The term 'aforethought' means thought of beforehand for any length of time, however short.

"3. The law presumes the defendant innocent until the State has proven his guilt beyond a reasonable doubt; unless the State has so proven his guilt, you should acquit him, but such a doubt to authorize an acquittal on that ground alone should be a substantial doubt of guilt and not a mere possibility of his innocence.

"4. Before you will be justified in convicting the defendant upon circumstantial evidence alone, the circumstances relied on must point to the guilt of the defendant so strongly as to exclude every reasonable hypothesis except that of the guilt of the defendant.

"5. If you believe that since the alleged commission of the offense charged in this case the defendant has made any statement in relation thereto, you will consider all that he said together; what he said, if anything, against himself, the law presumes to be true, because said against himself; what he said, if anything, in his own favor, you are not bound to believe, because said in a conversation proven by the State; but you may believe or disbelieve such statements, if any, made in his own favor, according as you may believe from all the facts and circumstances in evidence or what part of any statement defendant may have made, if any, is true or false.

"6. You are the sole judges of the weight of the evidence and the credibility of the witnesses. In passing upon what weight you will give to the testimony of any witness you may take into consideration the manner and conduct of the witness while on the stand, his feelings for or against the defendant, if any his relationship, if any, to the defendant, his bias or prejudice, if any be...