State v. Groce

GANTT, P. J. This prosecution originated in ITowell county, by the filing of an information in the circuit court, by the prosecuting attorney, in two counts. The first count charged an assault with intent to murder, under section 1847, Revised Statutes 1899', and the second count an offense under section 1848, Revised Statutes 1899. , The defendant was convicted under the second count and appeals. The information charged that the defendant, on the 23d day of August, 1909', at the county of Howell, did .then and there willfully and feloniously make an assault upon one Harvey Redburn and then and there did feloniously strike him, the said Redburn, with a whip handle loaded with some hard substance in the end thereof, a deadly and dangerous weapon, whereby said Redburn was maimed, wounded and ill-treated and received great bodily harm, likely to produce death. The testimony established that the prosecuting witness, Redburn, and one Rhodes were partners in a restaurant, on August 23,1909, in West Plains, Howell county. It appears that some two or three evenings before the 23d of August, the defendant brought a chicken to this restaurant to have it cooked, saying that he had stolen'it from a woman named Hayden. The proprietors of the restaurant refused to have it cooked and the defendant turned the chicken loose in the yard in the rear of the restaurant. • The defendant returned to the restaurant that evening, and said to Redburn, “You stole that chicken,” and Redburn denied it, whereupon defendant cursed Redburn and called him a liar. A wordy altercation ensued. Red-burn being behind the counter and defendant in front [705] opposite Redburn, defendant struck Redburn with the loaded butt end of a whip and felled him to the floor, and attempted to follow up the assault; when he was prevented by Redburn’s father and partner. Redburn had on his hat at the time and the blow broke a hole in it. The hat with the hole in it was introduced in evidence. Redburn was rendered unconscious for a time by the blow on the head. Dr. Shuttee dressed the wound. He testified the wound was a scalp wound an inch or inch and a half long, cut through the scalp, and was caused by some blunt instrument. A whip handle like the one shown him would cause such a wound. He did not regard it as serious when he examined it. The evidence further tended to prove that prior to going to the restaurant the night of the difficulty, defendant' was talking to one Farr, and, as he left him, said, “I will just go and raise a little hell.” After the assault, defendant left Howell county, and went to Brookfield, Linn county, in the northern portion of the State and passed under the assumed name of Robert See, and was bearing the name when arrested in Brookfield. He testified that he had been in the penitentiary once. Defendant in his own behalf testified he struck Redburn because the latter was attempting to get a billiard cue and because there was a revolver near where Redburn was and he struck him to prevent his getting the billiard cue or revolver. The cause was submitted to the jury on instructions to which no objections were made at the time and of which no complaint is made in the motion for new trial. I. In the absence of any brief for the defendant, we have been compelled to resort to the motions for new trial and in arrest to ascertain what errors de [706] fendant claimed were committed against him. The second count of the information was sufficient. The defendant having been acquitted on the first, it is not for review. The arraignment and verdict are in due and regular form. II. The objections to the evidence were without merit. The rulings were in accord with the law governing the relevancy, and admission and rejection of testimony. No good purpose can be subserved by reproducing each item of the evidence admitted and rejected, for the reason that the ruling of the court was obviously correct. III. The remarks of counsel for the state were made a ground for new trial, but the bill of exceptions does not show that any objections were made at the time or any exceptions saved, and therefore they can not be considered on this appeal. [State v. McMullin, 170 Mo. 632; State v. Sublett, 191 Mo. 174] IY. The juror Wood qualified on his voir dire and no objection was made to him and on the hearing of the motion for new trial the circuit court heard the evidence pro and con as to his alleged disqualification and we see no reason for disturbing its finding on a question of fact depending largely, if not entirely, upon the credibility of the witnesses. There are some other questions mooted 'in the motion for new trial which we have examined and considered, but they do not substantially affect the judgment. The judgment is affirmed. Burgess and Kennish, JJ., concur.