State v. Berning, 91 Mo. 82

State v. Berning

91 Mo. 82 | Mo. | 1886

Black, J.

The defendant was indicted and convicted of an assault with intent to kill Joseph Klatt. The indictment is based upon section 1262, Revised Statutes.. Instructions were given on the theory that the assault was made with malice aforethought, and also on the theory of the subsequent section, that the assault was without malice aforethought.

1. The contention that the verdict is against the evidence, cannot be sustained. That defendant cut Klatt, who was a buggy washer at Mayer & Strattman' & stables, with a knife, inflicting an ugly and dangerous wound, is not denied. The defence is, that Klatt attacked defendant with a horse-shoe. The right of the defendant to protect himself, by way of self-defence, was fairly submitted to the jury. It is quite evident the jury did not believe the defendant’s version of the difficulty. There- is abundant evidence to sustain the verdict.

2. It is next urged that the verdict is insufficient, in that it does not show of what grade of the offence defendant was convicted. The verdict is: “We, the jury, find the defendant guilty of assault with intent to kill, and assess the punishment at two years in the state penitentiary.” It is to be observed the verdict does not simply say the 'defendant is guilty as charged, but it describes the offence of which he is found guilty. It is thus clear that the jury intended, by their verdict, and do show, that he was found guilty of an assault with intent to kill, but not with malice aforethought. *85Read in the light of the instructions, this is its evident meaning. But section 1927, Revised Statutes, has no application here. The verdict, by force of that section, must specify the degree of the offence, only where the statute in terms divides an offence into degrees, and the defendant is found guilty of a degree inferior to that charged. An assault with intent to kill, with malice aforethought, and without malice aforethought, are not designated as different degrees of an offence, and the verdict need not specify the offence of which defendant is convicted. State v. Burk, 89 Mo. 635; State v. Robb, 90 Mo. 30.

3. Finally, it is insisted that the court erred in requiring defendant, when a witness in his own favor, to answer certain questions on the cross-examination. The evidence for the state tends to show that defendant hired and paid for a horse and buggy to be returned at 9 o‘clock, p. M., of the same day; that the horse and buggy were not returned until, twelve o’clock that night, when one of the proprietors of the stable demanded additional pay, and out of this the controversy arose. The defendant testified in chief that he hired and paid for the use of the horse and buggy until eleven o’clock, and that he returned them to the stable at twenty minutes past eleven. He also testified: “I took the girl in the buggy at her house, drove out to the western part of the city, came back and left the girl at her house, took up my brother, and drove right down to the stable.’/ In answer to questions propounded by the circuit attorney, and to which the objections were made, he stated that he did visit two saloons that night before returning the buggy. We do not see for what purpose the defendant detailed where he had been during the evening ride, unless it was to give support to his statements as to how long he was out, and when he returned to the stable. If offered for this purpose, and we cannot see for what other purpose the evidence could have been offered, then *86it was certainly competent to show that he stopped at other places. The cross-examination was within the bounds of the matters testified to in chief, and we see ■no violation of section 1918, Revised Statutes. Complaint is made of some other evidence elicited from the defendant on cross-examination, but it does not appear that objections were made, or any exceptions saved, and for these reasons we cannot notice the complaint.

Judgment affirmed.

All concur.