State v. Nelson

118 Mo. 124 | Mo. | 1893

Burgess, J.

The defendant was, at the March, term, 1893, of the criminal court of Lafayette county, convicted of an assault, with intent to kill one Mecum. Squires by shooting at him with a pistol, and his punishment fixed at imprisonment in the penitentiary for three years.

The state offered evidence tending to show that at the time of the shooting, which occurred at the town of Napoleon, Lafayette county, on the ninth day of' December, 1892, that Mecum Squires was the city mar-' shal of that town, and that he was informed that the-defendant was carrying a pistol concealed, had been exhibiting it in a saloon, when as city marshal he. attempted to arrest defendant, who ran, at the same dime pulling a revolver out of Ms pocket and when ■ordered by the marshal to halt, instead of doing so turned and fired at him three or four times, hallooing at him, Mecum, to shoot his fire-cracker, at the same time firing two additional shots. Defendant admitted .shooting at Squires four times but testified as a witness in Ms own behalf that he did not shoot until after the marshal had fired at him, and that he had no intention to’kill, but simply fired his pistol at Mecum for the purpose of scaring Mm only. Squires was not hit by •either one of the shots.

Defendant did not ask the court to instruct the .jury as for common assault, but now insists, and did in his motion for a new trial, that it was the duty of the court to do so anyway. This is' the only point insisted ■upon in this court for a reversal of the case.

Section 4208, Revised Statutes, 1889, makes it the ■duty of the trial court to instruct the jury in writing upon all questions of law arising in the case which are necessary for their information, whether asked to do so •or not. This has been the uniform rule announced by ■this court. State v. Palmer, 88 Mo. 570; State v. Banks, 73 Mo. 592; State v. Maguire, 113 Mo. 670.

While the defendant testified that he shot at the ■marshal three or four times with a deadly weapon, he also testified that he had no intention to kill at the time, and shot merely to_frighten him. The defendant .had the right to testify as to his intention in shooting. State v. Banks, 73 Mo. 592; State v. Palmer, 88 Mo. 568. But the statements of defendant were so encumbered with the physical facts and Ms conduct was so unreasonable and inconsistent with the experience of mankind, that the court was not bound to believe Mm and to instruct the jury on Ms testimony for a less grade of offense than that of assault with intent to kill. While the State v. Banks, 73 Mo. 592; State v. Palmer, 88 Mo. 568 and State v. Tate, 12 Mo. App. 327, seem to announce a contrary- rule, the more recent decisions •are the other way. State v. Anderson, 89 Mo. 332; State v. Bryant, 102 Mo. 24; State v. Turlington, 102 Mo. 642. Had the defendant shot the marshal through the heart and killed him, he could with the same pro: priety have testified that he did uot intend to do so, a statement that no one would be inclined to believe. Defendant’s statement that he did not intend to kill but shot merely to frighten his pursuer when at the same time he admitted the shooting, was not worthy of belief, and, as was said by this court in the case of State v. Bryant, supra, "so here, the physical facts in'the case are equally plain, and we shall not stultify ourselv-es by believing the defendant’s words, in preference to his acts, the latter are the true exponents of his intention, and they furnish the only safe key to his motives.”

The evidence shows conclusively that the defendant, if guilty of any offense at all, was guilty of an •assault with intent to kill, and the verdict is sustained by the evidence. Judgment is affirmed.

All concur.