142 Mo. 456 | Mo. | 1898
At the April term, 1897, of the circuit court of Platte county, the defendant was convicted of a felonious assault with intent to kill one Gh L. Andrews. The jury by their verdict failed to fix the punishment, whereupon the court assessed it at three years’ imprisonment in the penitentiary. Defendant then filed motions for new trial and in arrest, which being overruled, he saved his exceptions and appealed.
At the time of the assault G. L. Andrews, upon whom it was committed, was a conductor on a freight train of the Chicago & Great Western Railroad, which runs through Platte county, Missouri. On the ninth
The first point urged for a reversal of the judgment is with respect to the action of the court in giving the third instruction on the part of the State.
It is as follows:
“3. The court instructs the jury that before they can convict the defendant, they must be satisfied of his guilt beyond a reasonable doubt. In this connection the court further instructs the jury that to authorize you to acquit upon reasonable doubt alone, such doubt must be a substantial doubt of defendant’s guilt, with a view to all the evidence in the case, and not a mere possibility of defendant’s innocence.”
Another contention is that error was committed in the refusal of the fourth and sixth instructions asked by defendant. They read as' follows:
“4. The court instructs the jury that if they believe from the evidence that the defendant at the time and place mentioned in the indictment assaulted and struck the prosecuting witness, Andrews, with a piece of iron or a brick or any other missile, merely to inflict an ordinary battery upon him in the heat of passion*462 suddenly aroused by insulting epithets or words spoken to him by said Andrews at the time, but without any intention to inflict great bodily harm or to kill him, the said Andrews, then the jury will find the defendant guilty of a common assault and assess his punishment at a fine not exceeding one hundred dollars, or imprisonment in county jail not exceeding six months, or by both such fine and imprisonment.
“6. The court instructs the jury that although they may believe from the evidence that the defendant struck Andrews with a piece of iron or stone or brick, yet if the jury believe from the evidence that said Andrews at the time was about to assault or strike, or that the defendant had a reasonable cause to apprehend a design on the part of Andrews to do him some personal injury, and that the defendant had reasonable cause to believe, and did believe, that said Andrews was about to carry such design into execution, and that the defendant without deliberation, premeditation or malice aforethought, as those terms have been defined in these instructions, and without any intention to kill said Andrews, but through fear induced by the attitude of said Andrews, although the jury may believe from the evidence that defendant was in no actual danger, and that said Andrews did not intend to inflict any personal injury upon the defendant, the jury can not find the defendant guilty of felonious assault, but they may find him guilty of common assault, and assess his punishment at a fine not exceeding one hundred dollars, or imprisonment in the county jail not exceeding six months, or both such fine and imprisonment.”
These instructions were properly refused because not warranted by the evidence. Under the evidence the defendant was either guilty of felonious assault, or
The fifth instruction asked by defendant and refused was not applicable to the facts in the case, and was properly refused. The question as to whether or not the assault was committed with a dangerous and deadly weapon, as well also as all other issues involved, were fairly submitted to the jury by the instructions. Defendant had a fair trial, and as there is nothing in the record which would justify a reversal of the judgment, it is affirmed.