The State v. Jones
Decision Date | 05 June 1925 |
Docket Number | 26150 |
Parties | THE STATE v. LEE JONES, Appellant |
Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court; Hon. W. H. Utz, Judge.
Reversed and remanded.
J V. Gaddy for appellant.
(1) The court erred in giving Instruction 4. First, because it directs a verdict and does not negative the defense of self-defense. Second, because it does not require the jury to find the knife said to be used by the appellant was a deadly weapon. Third, because the giving of Instruction 5 did not cure the error in Instruction 4. State v. Gabriel, 256 S.W. 767; State v. Slusher, 256 S.W. 817; State v. Helton, 234 Mo. 559; State v Stubblefield, 239 Mo. 526. (2) The court erred in giving Instruction 5 and failing to give an instruction justifying the defendant in the assault if the jury found that he stabbed the prosecuting witness in the defense of his property.
Robert W. Otto, Attorney-General, for respondent; Will R Frank of counsel.
(1) The instructions properly declare the law and fairly submitted the case to the jury. State v. Lewis, 248 Mo. 504; State v. Parmenter, 278 Mo. 540; State v. Maupin, 196 Mo. 174; State v. Hudspeth, 159 Mo. 178. (2) Appellant's complaint in his motion for new trial that the court failed to instruct on all of the evidence of the case is without foundation here. He did not pray the court to instruct on all of the law of the case and did not save any exceptions to its failure so to do, hence this point is not before this court for decision. State v. Vinco, 171 Mo. 591. The instructions given by the court presented all of the law of the case and fairly submitted the case to the jury.
The appellant was charged by information in the Circuit Court of Buchanan County with an assault with intent to kill, and upon a trial to a jury was found guilty and his punishment assessed at two years' imprisonment in the penitentiary. From this judgment he appeals.
One Mike Flaherty, on the 21st day of October, 1923, kept in the city of St. Joseph what, for euphony and by way of designation, is called a "soft-drink parlor." On that day Charles Fairbanks, the person assaulted, upon entering this place found the appellant and Flaherty in a quarrel over an unpaid bill of the former. Upon the entrance of Fairbanks, Flaherty handed him a twenty-dollar bill which it appears was the property of the appellant, and asked him -- Fairbanks -- to go out and get change for it. As the bill was handed to Fairbanks, the appellant, prefacing his remark with a vile epithet, said to Fairbanks, "What have you got to do with it?" "Not a thing" said Fairbanks; "I was just trying to do you a favor." "Then," said the appellant with an oath, "keep out of it." Fairbanks then handed the bill to the appellant, who continued to curse him. The former finally said to the appellant: "If you don't stop this abuse I will knock you down." Fairbanks and Flaherty then walked to the other end of the counter, and while the former was standing with his back to the appellant and in the act of handing an account he had against Flaherty to the latter for payment, the appellant rushed up behind Fairbanks, stabbed him several times and ran out of the room, followed by Fairbanks. The appellant, after running several blocks pursued by Fairbanks, was apprehended by the police and bystanders, and Fairbanks was prevented from assaulting him. An ambulance was called, and Fairbanks was taken to a hospital where he remained for some time.
Upon an examination of Fairbank's wounds by a surgeon immediately after the assault it was disclosed that he had a cut on his right side below the ribs through which his intestines were visible; and one on his left side below the ribs in the front part of his abdomen, and a cut on his left hand. The wounds were given attention by the surgeon, a Dr. Thompson, under whose care Fairbanks remained for about three weeks. The surgeon testified that the wounds were such as could have been inflicted by a sharp instrument. An open knife was identified as having been found in a fence corner at a point where the appellant had jumped over the fence while fleeing from Fairbanks. One witness testified that as the appellant passed her in his flight before he reached the fence, she saw a knife in his hand. When the appellant and Fairbanks were apprehended, and the latter, weak from the loss of blood was being supported by bystanders, he said, "That is the man," indicating the appellant, "that cut me." The foregoing embodies the relevant portions of the testimony for the State.
Several witnesses testified to the former peaceable character of the appellant. His own testimony was substantially as follows:
I. The giving of instruction numbered four for the State is assigned as error. This instruction is as follows:
The infirmity of this instruction, as contended by counsel for appellant, is that while purporting to cover the entire case and to direct a finding, it does not embrace all of the issues and the law thereto applicable.
This is not a question of first impression in this court. It was first adverted to somewhat incidentally in State v McNamara, 100 Mo. l. c. 105; but in State v. Lentz, 184 Mo. l. c. 235, it was affirmatively held that an instruction is erroneous which purports to cover the whole case if it omits an essential element of the offense charged and that the omission cannot be cured by a separate instruction defining the omitted element. Later, in State v. Helton, 234 Mo. l. c....
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