262 Mo. 214 | Mo. | 1914
Adjudged to serve a term of seven years in the penitentiary for assaulting with intent to kill one Lonnie Howell, defendant appeals to this court.
On February 9, 1912, defendant met Lonnie How-oil and his father-in-law, Bud Rockett, at the town of Braggadocio,-Missouri. All these parties lived on nearby farms and had walked to town. A heavy snow was falling.
Howell and Rockett became drunk and talked and acted boisterously. They engaged in a quarrel with defendant because the latter made some remark about their Being drunk when one of them fell in the snow.
Howell cursed defendant and threatened to shoot him unless he shook hands and made friends. There is no evidence that any of the parties were armed at that time, though there is some evidence that Howell placed his hand in his pocket as if to draw a revolver at the time he made the threat before mentioned. After shaking hands with defendant, Howell and Rockett started home slowly, staggering along the road arm in arm.
According to the testimony on behalf of the State, as soon as Howell and Rockett left town, defendant, who was sober, went into a store and called for shotgun shells; on being informed that the merchant had none except those loaded with number eight shot, defendant remarked that he wanted larger shot, but, being in a hurry, would take ten cents worth of the shells
Immediately after procuring the shells defendant went to the home of his sister, a few blocks distant, to borrow a gun. To her he was heard to say, “I’ll shoot him if I have to borrow a gun.” Failing to procure a gun at the home of his sister, defendant visited two other parties in Braggadocio, where he made unsuccessful attempts to borrow a shotgun.
He then followed Howell and Eockett down the road at a rapid gait. While Howell and Eockett were walking around a wagon which they met in the road, defendant, apparently unobserved, ran around the opposite side of the wagon and got ahead of them.
After going a short distance further defendant went into the home of one Hatley, where he again asked to borrow a shotgun. Hatley’s boy replied that he had a Winchester shotgun, but that he intended to use it hunting rabbits as soon as he could go to town and get some shells. To this statement defendant replied that there was a rabbit out on the road between Hatley’s house and town which he wanted to kill.
Defendant and young Hatley then loaded the shotgun with defendant’s three shells and started to town, Hatley carrying the gun. After going a very short distance they met Eockett and Howell, and, when they were about thirty feet from the latter, defendant took the gun from the Hatley boy, and, without saying a word, shot Howell in the face, inflicting severe wounds and completely destroying his eyesight. Howell testified that he had his hat pulled down over his eyes to keep out the drifting snow and did not know that defendant was within a mile of him when the gun was fired. Defendant testified that just before he shot Howell the latter ran his hand in his hip pocket and said, “I’ll get him now.” There was some evidence tending to corroborate defendant, but the great pre
Defendant’s counsel has not favored us with a brief, but an inspection of the record discloses the fact that he relies for reversal upon alleged errors hereinafter noted.
OPINION.
“The authorities are abundant that . . . parts of the deceased may be shown, such as the skull, jawbone, that may illustrate the nature of the wounds and identify the assailant, or the instrument, where that is essential. Not only the clothing may be exhibited, but it may be arranged upon a frame for convenience in exhibiting it to the jury, and structures and diagram of location may all be used as an aid in determining the charge under trial. ’ ’
A court or jury would be justified in imposing a more severe punishment where the assault was committed with such cruelty or deliberation as to result in severe injury to the person assaulted than in cases where the assault was carelessly made and resulted in no injury. The jury had a right to know the details of the assault and the result thereof in determining