State v. Billings

72 Mo. 662

• Court: Supreme Court of Missouri
• Decided: October 15, 1880
• Status: Published

Opinion

Norton, J.

This is an indictment founded on section 6, Wagner’s Statutes, 491, upon which defendant was tried and convicted in the circuit court of Bollinger county. Erom this judgment of conviction he has appealed to this court. As the record fails to show an arraignment of the defendant before he was put upon his trial, the judgment must be reversed, and as the cause will be remanded for further proceedings, we deem it proper to say that the indictment charges in the language of the statute that defendant and one Whitehead voluntarily and by agreement engaged in a tight in “ a certain public street and highway in the town of Marble Hill.” * * The evidence tended to show that the tight was entered into in a saloon, on a public street in said town, the front door of which was open, and was continued through the door and out on the street. On the trial defendant objected to the introduction of the evidence as to the commencement of the affray in the saloon. * The objection, we think, was properly overruled. The commencement of the fight in the saloon and its continuance by the parties engaged in it after they got out on the street, were so intimately blended as to constitute but one transaction. The mere fact of the fight having been entered into in the saloon, will not exempt defendant from liability if it was continued by the combtants af ter they reached the public street. The first instruction, if modified as above indicated, ought to be given. Judgment reversed and cause remanded, in which

all concur.