The State v. Harris
| Decision Date | 04 December 1906 |
| Citation | 98 S.W. 457,199 Mo. 716 |
| Parties | THE STATE v. FRANK HARRIS, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Francois Circuit Court. -- Hon. Robt. A. Anthony Judge.
Affirmed.
Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
(1) Most of the evidence was admitted without any objections from defendant. In three instances defendant's counsel objected, but assigned no reason therefor, which is not sufficient. State v. Young, 153 Mo. 449; State v. Westlake, 159 Mo. 679. While the State's attorney was cross-examining the defendant, a question was asked and answered by the defendant without any objection being made. After it was answered by defendant, defendant's attorney made an objection; but did not even then assign his reasons therefor. It has often been decided that a party can not sit by and allow a question to be answered, and, if the answer does not suit him, then make an objection. State v Rapp, 142 Mo. 449; State v. Marcks, 140 Mo 656; State v. Sykes, 191 Mo. 79; Thompson on Trials, secs. 715-716. (2) Nearly all of defendant's evidence was admitted by the trial court. But, in five instances, the State objected to certain questions asked by defendant, and the objections were sustained. It is impossible to see how such evidence was relevant, or what possible bearing it could have had on the merits of the case. But even if it was material, defendant's counsel failed to state what he expected to prove by the witness; hence, the point has not been properly saved for review. State v. Hodges, 144 Mo. 50; State v. Martin, 124 Mo. 514. Defendant's counsel asked defendant to state to the jury whether or not he took that pistol there for the purpose of using it on the prosecuting witness. To this question defendant replied that he did not, and never thought of such a thing. Defendant's counsel then asked the reason that he had for carrying that pistol; to which the State interposed an objection, and the objection was sustained. Without stating what he expected to prove, defendant's counsel saved his exceptions. It is insisted that the record in this respect contains no error for three reasons: First, because no formal offer of proof was made; second, because to allow defendant to prove his reasons therefor would have been foreign to this issue and would have raised one or more collateral issues in the case; and third, because said evidence was immaterial, and its exclusion could not have prejudiced defendant's case. Defendant was allowed to prove that he did not carry said pistol for the purpose of using it on the prosecuting witness, and that he "never thought of such a thing." To have allowed him to go further and prove who had threatened his life, if any one, or that he was afraid of a dog, or other vicious animal, or that he intended to take the pistol to the repair shop, would have injected into the case matters that had no bearing on the issue. It should be remembered that the defendant was not charged with carrying a concealed weapon; but with an assault with intent to kill. If the defendant had shot the prosecuting witness, the crime charged would have been committed, even though the defendant had not carried the pistol in his pocket. Sec. 1863, R. S. 1899; 3 Rice on Evidence, sec. 41; Wharton's Crim. Evid., sec. 24; Com. v. Chote, 105 Mass. 451. (3) No error was committed in failing to instruct on the subject of common assault; nor in failing to fully instruct on all of the law applicable to the case. But, even if the trial court did so err, defendant has waived the same by failing to ask for such an instruction, and by failing to object and save his exceptions at the time. State v. McGinnis, 158 Mo. 124; State v. Albright, 144 Mo. 638.
This is a prosecution commenced by the filing of an information by the prosecuting attorney of St. Francois county, in the office of the clerk of the circuit court in vacation, on the 22nd day of September, 1903, wherein he charged the defendant with an assault upon one James Stout, with the intent him, the said Stout, on purpose and of his malice afore-thought, feloniously to kill and murder. The information was duly verified, and the defendant was arrested and the cause continued until the second day of August, 1904, at which time the defendant was duly arraigned and entered his plea of not guilty, and he was pet upon his trial and convicted and his punishment assessed at five years' imprisonment in the penitentiary of this State.
After unsuccessful motions for a new trial and in arrest of judgment, the defendant was sentenced in accordance with the verdict of the jury. From that verdict and judgment he appeals to this court. Time was granted the defendant within which to file his bill of exceptions, and in obedience to the leave granted, the defendant did on the 29th of December, 1904, file his bill of exceptions.
The evidence on the part of the State tends to prove that the defendant was a barber by occupation and lived in Ironton and the prosecuting witness, James Stout, lived in Iron Mountain, St. Francois county. For some months prior to the difficulty the relations between the defendant and the prosecuting witness had been unfriendly. The prosecuting witness, it seems, thought that the defendant had been too intimate with the prosecuting witness's wife. It seems that the defendant on one occasion brought Stout's wife home in a buggy, and a considerable difficulty occurred between the defendant and Stout. Afterwards and on Sunday morning, September 20, 1903, the defendant came to the home of Stout in Iron Mountain, in company with Andrew Langley and Fred Stout, a son of the prosecuting witness. These three brought a case of beer with them, and located themselves in Stout's yard from about eleven o'clock in the forenoon until four or five in the afternoon. During this time they consumed most of the beer. Indeed, the evidence tends to show that they replenished the supply twice during the day. During their stay in the yard of the prosecuting witness, his wife went out on the porch and talked with defendant for a considerable time, took some of his bottles of beer and put them in a tub of ice water, and from time to time she took the beer out to defendant and the others who were with him, and she also invited the defendant to come in and take dinner with them, but the defendant declined this invitation, saying he had money enough to buy his dinner. About noon the defendant sent off to a restaurant and bought some cheese and crackers, which he ate out in the yard. During the day defendant got a chair and a pair of scissors and trimmed the hair of Mr. Langley, his companion. During all this time, the prosecuting witness, Stout, remained in his house, and did not go out to see and did not speak to the defendant. Langley left, and one Frank Postelwaite came up and he was invited by the defendant to drink some of the beer, which he did. The evidence then tends to show that about 4:30 o'clock in the afternoon, Stout, the prosecuting witness, who was still in the house, directed his son, Charley, to go out to the wood pile and bring in some stove wood. The boy replied he did not want to go, and there was no wood cut, thereupon Stout told him to cut some, and ran towards the boy, and on to the porch kicking his son as he jumped off of the porch. Defendant who was still in the yard, looked up, and Stout asked him what he had to say about it, to which defendant replied, "Who are you talking to?" To which Stout answered, "I am talking to you you, G -- d -- you." Defendant called to Stout not to get his gun, at the same time raising up out of his chair and drawing his revolver. Stout retreated into the house and shut the door behind him. Defendant opened the door and struck Stout on the head with something; he could not tell what it was. Defendant then fired his pistol at Stout, the ball taking effect in the left shoulder three inches below...
To continue reading
Request your trial