State v. Harper
69 Mo. 425
Mo.
1879
Check Treatment
Norton, J.

At the March term of the circuit court of Stoddard county, the defendant was indicted for an assault with intent to kill. The indictment charged that defendant “ did feloniously, willfully, on purpose and of his malice aforethought, make ari assault upon one Martin Lawson, with a certain brickbat and & certain knife, which he, the said William H. Harper, theu and there in his right hand had and held, and which certain brickbat and said certain knife, were then and there deadly weapons, with the intent then and there him, the said Martin Lawson, willfully, &c., to kill and murder, against,” &c.

A demurrer was filed thereto, on the ground that it does not allege that defendant committed the alleged assault on Lawson with a deadly weapon, or by any other means or force likely to produce death or great bodily harm, and calls a brickbat and knife a deadly weapon, when they are not in law, or in fact, a weapon of any kind, which was overruled, and the defendant excepted.

The defendant was, thereupon, duly arraigned, pleaded “ not guilty,” and a trial was proceeded with, at which the State offered evidence tending to establish the allegations of the indictment, to which objections were made on the ground that a brickbat and knife were not deadly weapons, which objections were overruled, and the defendant excepted.

*426The defendant asked an instruction “ that neither a pocket knife nor a brickbat is a deadly weapon within the meaning of the law,” which the court refused, and he excepted. The court instructed the jury “that the question whether the knife and brickbat testified to have been used-by defendant in the alleged assault upon Lawson, is a deadly weapon, is a question of fact for them to determine.”

The jury found the defendant guilty, whereupon he filed a motion for a new trial and in arrest of judgment, which being overruled, he excepted and brings the case here by appeal. The objection taken to the action of the trial court sufficiently appears41 in the above statement. The demurrer, we think, was properly overruled. The indictment is founded on Wagner’s Statutes, section 29, page 449, and contains all the material allegations required to make out an offense thereunder, and is in form substantially the same as the indictment approved by this court in the cases of the State v. York 22 Mo. 462; State v. Bailey, 21 Mo. 484; State v. McDonald, 67 Mo. 13.

There was no error committed by the court in refusing to instruct the jury that “ neither a pocket knife nor brickbat is a deadly weapon within the meaning of the law.” Whether either was a deadly weapon was properly referred to the jury as a question of fact. Judgment affirmed.

All concur.

Aeeirmed.