State v. Nichols

170 S.W. 1110, 262 Mo. 113, 1914 Mo. LEXIS 148

• Court: Supreme Court of Missouri
• Decided: November 24, 1914
• Status: Published

Opinion

WILLIAMS, C.

Upon an information charging him, under section 4496, Revised Statutes 1909, with the crime of having exhibited a dangerous weapon, to-wit, a pistol, in a rude, angry, and threatening manner in the presence of two persons named in the information, defendant was tried in the circuit court of Stoddard county, Missouri, found guilty, and his punishment assessed at a fine of $100. Defendant duly perfected an appeal to this court.

Upon the part of the State the evidence tended to establish the following facts. Prosecuting witness E'lsworth claimed that defendant owed him for labor. Accompanied by one Birchfield, Elsworth called upon defendant and requested that he pay the debt. After some controversy over the matter, defendant, while riot denying the debt, said, <£I will not pay you.” Thereupon prosecuting witness, becoming angry, took a few steps toward defendant and defendant pulled from his shirt bosom a pistol and pointed it in the face of the prosecuting witness, causing him to stop. At this time Birchfield, who was seated a few feet away, on the other side of a fence, arose, and as he did so defendant pointed the pistol at him. During the time he was exhibiting the pistol in the above manner defendant said, “I will kill both of you G-— d— s— of b — s.” After that the defendant walked away and there was no further difficulty. The evidence further tended to show that defendant offered prosecuting witness $50 if he would come before the court and swear that he had made a false affidavit in causing defendant’s arrest; and that defendant had made attempts to have the prosecuting witness leave the county and State until the term of court was over. The evidence offered on the part of the defendant tended to prove that he did not have a pistol with him at the time of the controversy and that he did not exhibit a pistol at that time and place and that he did not use the oath above mentioned. A complete abstract of the record has been filed in this court but appellant has failed to favor us with a brief in the case. Under our statutory duty, however, we will proceed to examine the record and discuss the points properly raised by the motion for new trial.

"Exhibit" Instructions. I. The defendant requested the court to further instruct the jury by defining the word “exhibit” as used in the instruction which required the jury to find that defendant “did wilfully and feloníously in the presence of James Birch-field and George Elsworth, exhibit in a rude, angry, and threatening manner, a certain dangerous and deadly weapon, to-wit, a pistol,” etc. The court refused the request and defendant saved an exception and in his motion for new trial assigned the same as error. The court did not err in this regard. “Exhibit” as used in the instruction is a word, not of technical import, but one of plain English, well understood and commonly used. Such words need not be defined. [State v. Sattley, 131 Mo. 464, l. c. 491.]

Venue. II. It is contended that the evidence fails to prove the venue of the alleged offense. A review of the evidence does not justify this assignment of error as will at once appear from the fol-sowing qnoted portion of the testimony of one of th~ State's witnesses, to wit:

“Q. Where did this [referring to the alleged offense] take place, Mr. Elsworth? A. It took place near where I were living on Mr. Nichols’s farm.

“Q. What State and county? A. State of Missouri) County of Stoddard.”

Instructions. III. It is further contended that the court erred in giving each of the instructions given on behalf of the State. No useful purpose would be subserved m a lengthy discussion of the respective instructions. We have carefully examined the same and find them to be free from error.

Evidence: Question for Jury. IV. It is contended that the evidence is insufficient to support the verdict. The evidence upon the part of the State tends to prove that defendant drew his revolver and pointed the same, first at Elsworth, and then at Birchfield, at the / # 7 time saying, “I will kill both of you G&emdash; d&emdash; s&emdash; of b&emdash;s.” This was sufficient evidence to justify the submission of the case to the triers of the facts. It is true that defendant denied having a revolver on that occasion and denied that he made the above stated threatening remarks. But that at.most presented to the jury the problem of determining from the conflict of evidence the true facts of the matter, and under such circumstances the action of the jury is final.

The judgment is affirmed.

Boy, C., concurs.

PER CURIAM.

The foreg’oing opinion of Wil-

liams, C., is adopted as the opinion of the court.

All the judges concur.