Assault With State v. Cruts. force likely to produce death or great bodily harm, with intent to kill, maim, ravish or rob such person, or in the attempt to commit any burglary or other felony, or in resisting the execution of legal process, shall be punished by imprisonment in the penitentiary not less than two years." It is appellant's contention, that he was entitled to an instruction, under the evidence, by virtue of Section. 3693, R. S. 1919, leaving it to the jury to determine whether the assault was committed with malice aforethought, or with intent to kill, or do some great bodily harm, without malice aforethought. Said Section 3693, R. S. 1919, reads as follows: "Upon an indictment for an assault with intent to commit a felony, or for a felonious assault, the defendant may be convicted of a less offense; and in all other cases, whether prosecuted by indictment, information or before a justice of the peace, the jury or court trying the case may find the defendant not guilty of the offense as charged, and find him guilty of any offense, the commission of which is necessarily included in that charged against him." Several authorities are cited by defendant in support of above contention. We are not disposed to criticise the cases cited, when applied to the facts referred to therein. In construing the two sections of our Statute above quoted, we should keep in mind the particular facts of each case coming before us. It may be conceded, for the purposes of the case, that instances may arise under said sections, in which it would be proper to submit to the jury the question as to whether defendant might be convicted for a lower offense than that called for in Section 3262 supra but in each case, the facts must be sufficient to warrant the court in submitting said issue to the jury. If the evidence in behalf of the State be taken as true, defendant Rainey Cruts, armed himself with a loaded State v. Cruts. pistol and went to the scene of trouble, where Dan W. Bailey and his three sons were at work on their own premises, engaged in the legitimate business of burning trash thereon. When defendant and his brother approached the division fence, the State's evidence shows, that all of the Baileys were standing from ten to fifteen feet from the fence, with their respective forks on their shoulders; that they remained in that condition, and made no effort to advance on defendant and his brother, or to harm either of them; that defendant, thereupon, pulled his pistol, and without any provocation, shot Dan Bailey once in the right leg above the knee, once in the abdomen, and fired two more shots, which went through his hat. On the other hand, defendant testified, that he put his hand on his brother, told him not to throw the rock at John and, as he turned his head, Dan W. Bailey was almost at his face with the pitchfork, with which he commenced hitting and gouging defendant, without any justification or excuse therefor. He testified, that on the first shot, he intended to shoot his uncle Dan in the leg, as he did not want to kill him, but his uncle "kept coming and I just went to shooting wherever I could shoot, and the last shot, the last time he gouged the fork clear past my head and when he did I just jammed the gun right down on his head." On the State's theory, was defendant guilty of a murderous assault on his uncle, without provocation, with a loaded pistol, or did he shoot Dan Bailey, in self defense? Both theories were submitted to the jury under appropriate instructions, and a verdict returned to the effect, that defendant intentionally shot his uncle without provocation. The physical facts in this case, speak louder than words. It is undisputed, that defendant shot Dan Bailey in his right leg above the knee; that he shot him in the abdomen, tried to shoot him in the head, and only missed the latter by a small margin, as two holes were shot through his uncle's hat. The plea of self-defense having been eliminated by the verdict of the jury, it left the case with State v. Cruts. defendant having shot his uncle, as disclosed by the physical facts, without either justification or excuse. Taking the physical facts, in connection with the remaining testimony in the case, we are of the opinion, that the trial court committed no error in refusing to instruct as to a lower grade of assault. [State v. Feeler, 226 S. W. 1. c. 17-18; State v. Ray, 225 S. W. 1. c. 973; State v. Foster, 220 S. W. 1. c. 960-1; State v. Jones, 217 S. W. 22-3; State v. Burns, 278 Mo. 1. c. 449, 213 S. W. 1. c. 117; State v. Wansong, 271 Mo. 1. c. 56-7-8; 195 S. W. 999; State v. Webb, 266 Mo. 672, 182 S. W. 975, State v. Webb, 205 S. W. 1. c. 190; State v. Curtner, 262 Mo. 1. c. 218; State v. Maguire, 113 Mo. 1. c. 675; State v. Doyle, 107 Mo. 1. c. 43-4. II. Appellant's second contention is that: : Defense of Brother. "Under the law a man not only has the right to shoot another in the necessary defense of himself, but has the same right in defense of his brother, and the jury should be so instructed where the evidence warrants it.' [Sec. 3233, R. S. 1919; State v. Turner, 246 Mo. 598.] We have no disposition to controvert the above proposition, where the facts in the case justify the defendant in affording his brother protection. The above principle law, however, has no application to the facts in this case. Defendants were granted a severance, and the case of State v. Rainey Cruts, is the only one pending here for our consideration. It is not claimed, by either the State or defendant, that the latter shot any one but Dan W. Bailey. Appellant is on trial here for shooting his uncle, and not for shooting some other person, while the latter was assaulting his brother. It is not claimed, that Dan W. Bailey was assaulting defendant's brother when he was shot by appellant. On the contrary, the latter testified, as heretofore shown, that he shot Dan Bailey, because he claimed the latter was hitting and jabbing him with a pitchfork. The above contention is without merit and overruled. State v. Cruts. III. Defendant's third contention reads as follows: "It was error for the Court to admit as a part of the res gestae, evidence as to the act of Dan Cruts (brother of defendant) in shooting at John Bailey (son Resof prosecuting witness) and to refuse, by proper -: Gestae. instruction, to withdraw such evidence from the consideration of the jury in determining defendant's guilt." The court admitted as res gestae, everything that occurred from the time defendant and his brother came into the presence of Dan W. Bailey, and his three sons, until the shooting was over, and the two Cruts boys left. The conversation, acts and proceedings between said parties, under the circumstances aforesaid, were so interwoven as to present a single, continuous and inseparable transaction. The facts present a typical case, involving the doctrine of res gestae. [State v. Pfeifer, 267 Mo. 1. c. 28-9, 183 S. W. 337; State v. Katz, 266 Mo. I. c. 502-3; State v. Anderson, 252 Mo. 1. c. 98-9; State v. Vaughan, 200 Mo. 1; State v. Cavin, 199 Mo. 154; State v. Woodward, 191 Mo. 1. c. 633; 10 Ruling Case Law, sec. 157, p. 974.] The Missouri cases supra, conclusively sustain the trial court in holding, that the entire transaction which took place at the time of the shooting was a part of the res gestae to be considered by the jury in passing upon the case. IV. Defendant's instruction "A" was properly refused, because it was a comment on a portion of the testimony. [State v. Adkins, 225 S. W. 981; Jones v. Ry. Co., 228 S. W. 1. c. 784, and cases cited.] It was likewise properly refused, because instruction 4, given by the court, correctly ment on Evidence. declared the law, and covered the question complained of by appellant. [State -: Instruction Refused: Com v. Hilsabeck, 132 Mo. 1. c. 358.] Lackey v. United Rys. Co. V. We have examined all the matters complained of by appellant, and find no error in the record of which he can legally complain. The case was carefully tried by court and counsel, and the verdict is fully sustained by substantial evidence. The judgment below is accordingly affirmed. White and Mosley, CC., concur. PER CURIAM:-The foregoing opinion of RAILEY, C., is hereby adopted as the opinion of the court. All of the judges concur. RUBY LACKEY v. UNITED RAILWAYS COMPANY of ST. LOUIS, Appellant. Division Two, May 26, 1921. 1. DEMURRED TO EVIDENCE: Contributory Negligence: Crossing Street-Car Track: Presumptions. Where defendant's double-track street railway ran north and south along a private right of way across a public street running east and west, and there were regular stopping places for cars to take on passengers at the northwest and southeast corners of the intersection, and a person at the southeast corner had signaled a north-bound car to stop, a person starting from the northwest corner across the tracks and struck in such public street by said north-bound car, which was running at an excessive speed and did not stop, had a right, in the absence of knowledge to the contrary, to presume that the car was not running at an excessive speed and that it would stop at the regular stopping-place, and hence was not guilty of contributory negligence as a matter of law. 2. NEGLIGENCE: Last Chance Doctrine: Evidence of Peril. If a motorman operating a street-car across a public street sees a pedestrian approaching the street-car track, he has a right to assume, until a different intention becomes apparent, that such pedestrian will use due care for himself and will not step in front of the car; and, hence, in a suit based upon the last chance rule, it is error to submit that issue to the jury in the absence of evidence to show that at some particular time before he was struck the pedestrian was going into danger and was oblivious of his peril, |