The State v. Pool

• Decision Date: 28 May 1926
• Docket Number: 26640
• Citation: 285 S.W. 726,314 Mo. 673
• Parties: THE STATE v. HERSCHEL POOL, Appellant
• Court: Missouri Supreme Court

285 S.W. 726

314 Mo. 673

THE STATE v. HERSCHEL POOL, Appellant

No. 26640

Supreme Court of Missouri

May 28, 1926

Appeal from Stoddard Circuit Court; Hon. E. M. Dearing Special Judge.

Affirmed.

W G. Bray and Smith & Zimmerman for appellant.

(1) The Circuit Court of Stoddard County had no jurisdiction over the person and cause of action against appellant, because under the statute he was entitled to trial in some other county than Dunklin and Stoddard. Laws 1921, p. 206; State v Spivey, 191 Mo. 108; State v. Shipman, 93 Mo. 147. The provisions of this section are mandatory and to require additional affidavits would be to read something into the statute not written there. The affidavits filed with the application were directed against the prejudice of the inhabitants of both counties, Dunklin and Stoddard, and to require ten affidavits to support the application would do violence to the statute and read a provision therein not expressed. (2) In proving the good reputation of P. R. Smith for truth and veracity, the court erred in admitting incompetent and illegal evidence, offered by the State, which should work a reversal of the case. Warlick v. Peterson, 58 Mo. 408; Waddingham v. Hulett, 92 Mo. 528. (3) Again the court permitted counsel for the State to examine appellant about what took place after the difficulty, particullarly his drawing a gun to keep people from rushing upon him, which was clearly beyond the range or scope of his direct examination and which was prejudicial to defendant's rights under the law of our State. (4) Instruction 2 assumes that an assault was made upon P. R. Smith and failed to advise the jury as to the proper punishment. It is obvious that if the jury had been advised that it could impose both a fine and jail sentence that it might have assessed such a punishment. (5) Instruction 5 is tantamount to a directed verdict and was highly prejudicial. Furthermore, it was argumentative and served no useful purpose in the case, in the light of the other instructions herein, except to tell the jury the defendant could be convicted in any event. It may be argued that the concluding words "as you may find the facts to be under the evidence and instructions" might reasonably apply to first part of instruction, but no such language followed the direction in the first part. This instruction was wrong and prejudicial to appellant. State v. Swarens, 241 S.W. 934; State v. Adkins, 284 Mo. 688; State v. Edelen, 288 Mo. 172.

North T. Gentry, Attorney-General, and Harry L. Thomas and A. B. Lovan, Special Assistant Attorneys-General, for respondent.

(1) There was no error in not calling in another judge to try the case for the reason that the affidavit for a change of venue from the judge was not supported by the affidavit of two reputable persons as required by the statute. State v. Cavanaugh, 76 Mo. 55; State v. Brownfield, 83 Mo. 451; State v. Neiderer, 94 Mo. 81. (2) The venue was properly changed to Stoddard County for the reason that there were no accompanying affidavits from any residents of Stoddard County. All the affidavits accompanying the affidavits for change of venue were made by citizens of Dunklin County. (3) Evidence that defendant drew a pistol was properly admitted, being an immediate and inseparable incident to the assault and a part of the res gestae. State v. Cruts, 288 Mo. 107. (4) Over the objection of appellant the court permitted the witness to say, "I have never heard his reputation attacked." There was no error in admitting this testimony. State v. Grate, 68 Mo. 27; State v. Brandenburg, 118 Mo. 185; Davis v. Foster, 68 Ind. 241; 10 Cyc. 332; State v. McClellan, 98 P. 211; Underhill's Crim. Evidence (3 Ed.) sec. 140. (5) Cross-examination of the defendant is not limited to a mere categorical review. State v. Edelen, 288 Mo. 160; State v. Foley, 247 Mo. 607; State v. Lemon, 263 S.W. 186. (6) Complaint concerning Instruction 2 is that it did not correctly state the punishment to be assessed under the charge lodged against the defendant. The instruction omitted the words "or in the county jail not less than six months or by a fine not less than one hundred dollars." There might possibly be some reason in the point urged if it were not true that the record shows conclusively that the jury found the defendant guilty under Instruction 1. In view of the fact that the jury found the defendant guilty of assault with intent to kill with malice aforethought, Instruction 2 does not apply to the facts as found by the jury, and no prejudice could result to the defendant because of the misquoting of the statute with reference to the punishment in Instruction 2.

OPINION

Walker, P. J.

The defendant was charged by information in the Circuit Court of Dunklin County with an assault with intent to kill. Upon his application a change of venue was granted to Stoddard County. A trial to a jury resulted in his conviction and sentence to three years' imprisonment in the penitentiary. From this judgment he appeals.

P. R. Smith, a cotton buyer, who was assaulted, was standing on the street in the town of Senath, near a load of cotton, which he had just examined, when he was approached from the rear by the defendant and struck on the head with an iron bar in the hands of the latter and felled to the ground. A second blow was given to Smith while he was down, and after kicking him defendant drew a pistol from his pocket and ordered a bystander, who started to Smith's relief, to "stand back." Defendant, just before the assault, had driven up and stopped his car immediately in front of the team hitched to the cotton wagon, leaving the motor running, near where Smith was standing. After the assault he drove rapidly to Kennett and surrendered to the sheriff. Smith was rendered unconscious by the blows. The wounds inflicted were on the back and right side of his head. The first was superficial, as if made by a glancing blow; and the second indicated that it had been produced by a blow from a weapon with a knob or bolt on the end of same. The wound inflicted was deep and ragged, and there was a fracture and depression of the skull for about two inches. The driver of the cotton wagon who witnessed the assault stated, in confirmation of the foregoing, that it was committed by the defendant with an iron steering rod of a Ford car, about two and a half or three feet long. The witness further stated that the defendant approached Smith from the rear, struck him with the iron rod, and after he was down struck him again, kicked him, ran to his car and drove rapidly away. No words were passed between the defendant and Smith, and the only thing said by the former was, when he, with a drawn pistol, ordered a bystander, who attempted to go to Smith's relief, to "stand back." The foregoing is, in the main, the testimony introduced by the State.

The defendant introduced testimony of numerous threats made by Smith against him; that he was a deputy sheriff, and came to where he saw Smith on official business. Recalling the threats he had been told Smith had made, he took an iron pump handle from his car, and as he passed Smith the latter asked him what he intended to do with the club, and he answered, "You have been lying on me;" that after some words Smith raised his left hand in which he held a knife and appeared to strike at him, and that he struck Smith down with the iron bar and gave the latter a second blow as he was about to rise to his feet.

About two hours after the assault, the defendant, in conversation with a witness named Griffin, said in an excited manner that people had been telling him that Smith was going to send a man to buy whiskey from him, so that he might be sent to the penitentiary; that when he (defendant) heard this he became angry, got into his car, drove to where Smith was and struck him; that he knew it was no use for him to fight Smith fairly; that the latter was too much of a man for him. Smith's open pocket knife was found lying on the ground near where he was assaulted. The witness to whom Smith was talking when the cotton wagon drove up stated that Smith was whittling and had the knife in his hand while he was examining the cotton. There was contradictory testimony as to Smith's reputation for truth and veracity. Witnesses for the defendant were shown to have bad reputations for truth and veracity.

I. The information is drawn under Section 3262, Revised Statutes 1919, and charges an assault with a deadly weapon. It follows the language of the statute and under numerous precedents is not subject to valid objection.

II. The defendant contends that the trial court erred in its ruling upon the application for a change of venue. No affidavits were filed in support of the allegation as to the judge's prejudice in conformity with either Section 3973, Revised Statutes 1919, as amended, Laws 1921, page 206, or Section 3993, Revised Statutes 1919, and this phase of the contention does not demand further consideration.

Dunklin and Stoddard counties constitute the Twenty-second Judicial Circuit. The application for a change of venue, attested by the affidavits of residents of Dunklin County, only, alleged the prejudice of the inhabitants of both counties against the defendant. The court ordered the case transferred to Stoddard County. The defendant contends that it should have been sent to a county outside of the Twenty-second Judicial Circuit. In State v. Smith, 281 S.W. 35, in which it was sought to secure a change of venue to a county outside of the judicial circuit in which the affidavits, in support of the application, were made by citizens...