State v. Pohl

BURG-ESS, J. Defendant was convicted, and his punishment fixed at four years’ imprisonment in the penitentiary, under an information filed by the prosecuting attorney of Maries county in the circuit court of said county, charging him with assaulting, with malice aforethought, with a deadly weapon, one Enoch Baumgartner. He appeals. The facts are that Baumgartner was administrator of the estate of defendant’s mother and curator of defendant’s estate, and after the arrival of age of defendant they had some disagreement and a lawsuit over the estate of the mother, in which defendant recovered judgment agáinst Baumgartner. Over these matters bad blood was aroused. Some months prior to the difficulty, the defendant desired to borrow the sum of seven hundred dollars on the farm that had been left him from his mother’s estate. As there was a mortgage upon it at that time, he was unable to do so unless Baumgartner would sign the note as his surety. After numerous requests, Baumgartner agreed to and did this, taking a deed of trust upon defendant’s land to indemnify himself against loss. A.t about the time this difficulty occurred the defendant had contracted to sell the place, and a-controversy arose over the question of the payment and release of the deed of trust'. ' There is a dispute and contention as to what the facts were in that respect. On the morning of the occurrence, Baumgartner went to Paydown, a little town in Maries county, where it was agreed among the parties they should meet and the matters be arranged. He found defendant in a saloon at that place. Defendant had been there all the morning drinking. When Baumgartner went into the saloon, the defendant met him about the middle of the room [427] and without any cansé or provocation, uttering an oath, struck Baumgartner forcibly upon the face with his fist, who, surprised and stunned at the assault made upon him, turned and fled, attempting to get out and keep out of the way of the defendant. The defendant followed, grabbed an empty beer bottle and struck him upon the back of the head, fracturing the skull, from which fracture a small piece of bone afterwards came put, and left a considerable depression in the head. The beer bottle broke and defendant grabbed another of like kind and struck his victim in the side and began bruising his body with it, when Baumgartner calledupon bystanders to take the defendant off of him. When this was done, Baumgartner started out of the door, and defendant threw another beer bottle at him, but-missed him and the bottle was broken to pieces against the door. Defendant testified that when Baumgartner came into the saloon “he came right towards me. He was about, I guess, in about two feet, or two and a half, from-me. He had a knife in his hand.” But there was no evidence tending to show that Baumgartner at any time threatened or attempted to use his knife on defendant. Edward Baumgartner signed an information charging the defendant with this assault; the information purports to be sworn to before the circuit clerk of Maries county, but does not contain the seal. John W. Tyrrell, prosecuting attorney of Maries county, filed an information charging the defendant with this assault. He does so in his official capacity and not under oath. It is said that the motion in arrest should have been sustained, because the information was not sufficient to require the defendant to be placed on trial. The argument is that the information is not based upon the knowledge, information and belief of the prosecuting attorney, nor upon the knowledge, information and belief of any person, and that it is not supported by the affidavit of any person. But this contention is [428] untenable. It was filed on September 24, 1901, and since the adoption of the amendment to the Constitution which took effect on December 19, 1900, an information in case of felony need not be under oath, but is sufficient if presented by the Attorney-General or the prosecuting attorney of the proper county under his official oath. [State v. Kyle, 166 Mo. 287.] It is said that the court erred in failing to instruct the jury upon all the questions of law arising in the case which was necessary for their information in considering of their verdict and, especially, upon the theory that the assault was committed in self-defense. There is no merit in this contention, for, according to the defendant’s own testimony, he was the aggressor, and nothing whatever tending to show that Baum-gartner was threatening or attempting to harm him in any way, and although he may have had a knife in his hand at the time, that did not, in the absence of anything tending' to show that he was about to assault defendant or to do him some physical injury with it, justify defendant in assaulting him. He was not, therefore, entitled to an instruction upon that theory of the case, but notwithstanding this fact, the court did instruct upon that feature of the case, and while the instructions with respect thereto should not have been given, and were erroneous in that they do not correctly present the law of self-defense, as they required less of defendant than the law imposed upon him to justify the assault by him, they were errors in his favor, of which he can not complain. Moreover, one of the instructions complained of was given at his own request, and it is well settled that no litigant can invite the court to commit error and thereafter take advantage of it. The instructions that were given covered every feature of the case including that of reasonable doubt as to defendant’s guilt, and were more favorable to him than the facts of the case justified. The assault was without justification or excuse, or a single palliating circumstance connected with it, but was brutal in the extreme. The judgment is affirmed. All concur.