101 Mo. 243 | Mo. | 1890
Indictment under section 1262, Revised Statutes, 1879, omitting formal parts, as follows:
“That Ralph Elvins on the - day of March, 1886, at and in the county of St. Francois and state of Missouri, in and upon one Barney Flynn, feloniously, on purpose and of his malice aforethought, did make an assault, and did then and there, on purpose and of his malice aforethought, feloniously shoot at him, the said Barney Flynn, with a certain Winchester rifle, loaded with powder and leaden balls which he, the said Ralph Elvins, then and there held in both his hands, with intent then and there the said Barney Flynn, on purpose and of his malice aforethought, feloniously to kill and murder; against the peace and dignity of the state.
“ Merrill Pipkin,
“Prosecuting Attorney.”
There was no appearance of counsel for defendant in this court, either by brief or otherwise ; but complying with our statutory duty we have carefully read the record to see if reversible error occurred during the trial of the cause, or in proceedings subsequent thereto, with the following results :
I. The indictment, to which objection was taken by motion in arrest, is in all respects sufficient and in accordance with approved precedents.
II. The testimony fully sustains the verdict. And testimony was perfectly competent to show how the
III. There were no exceptions saved to the giving of any instructions, and they need not be considered for that reason, as exceptions to the action of a trial court stand upon the same plane in criminal cases as in civil, as the statute provides and this court has oftentimes decided. But, nevertheless, we have read them and find them, speaking in a general way, to lay down the law in a manner frequently approved by this court in this class of cases, and the instruction in relation to self-defense was in accordance with the rulings of this court in a number of instances. State v. Gilmore, 95 Mo. 554; State v. Partlow, 90 Mo. 608; State v. Berkley, 92 Mo. 41; State v. Parker, 96 Mo. 382; State v. Herrell, 97 Mo. 105. There is no ground of complaint, therefore, on this score.
IV. The language of the prosecuting attorney in the closing argument, to which objection was made, was this: “Gentlemen: You know that these assaults with intent to kill are becoming too common in this country and in Southeast Missouri.” There was nothing in this language meriting any rebuke whatever; it was strictly within the line of legitimate argument.
V. Lastly, the verdict of the jury was:
“We the jury find the defendant, Ralph Elvins, guilty as he stand charged in the indictment and assess his punishment at imprisonment in the penitentiary for the term of three years.
“ Geo. L. Cooley, Foreman.”
Therefore, judgment affirmed.