67 Mo. 84 | Mo. | 1877
At the October term, 1875, of the circuit cdurt of Douglas county, the defendant was indicted for an assault with intent to kill. The indictment alleged that “John Painter and Elisha Painter, both late of the county of Douglas, at and in the county of Douglas, on or about1 the first day of August, 1875, feloniously, willfully, on purpose and of his malice aforethought, an assault did make upon one ’William Andrews, in the peace of the State then and there being with dangerous and deadly weapons to-wit: an axe and a gun being then and there deadly weapons in the hands of the said John Painter, and Elisha Painter, then and there held, with the intent him, the said Andrews, then and there to kill and murder, contrary,” &c. At the October term, 1877, of said court, there was a trial of the cause, and defendant was found guilty and sentenced to the penitentiary for a term of two years. Motions for a new trial and in arrest of judgment were overruled, and defendant has prosecuted an appeal to this court.
The evidence on the part of the State was to the effect that William Andrews, on the 25th day of August, 1875, 2.-. went to the blacksmith shop of defendant’s-father in Douglas county; that defendant was in the shop-mending a shoe, and as soon as he had finished that work he went home a short distance from the shop and soon returned with a gun, and remarked to Andrews: “ Bill Andrews, I am going to kill you, d — n your old soul.” The-gun was then lying across his right arm, with the muzzle-pointed towards Andrews’ feet, the defendant’s left hand being on the cock of the gun. Iiis father immediately left, the forge and caught hold of the gun, and forced the muzzle towards the ground ; but this was after defendant had elevated the muzzle, so that the gun was pointed towards. Andrews’ body as high as his hips. The testimony for the defense was that of the defendant and his brother. The-latter testified that defendant went to the house and returned, with a gun, and said to Andrews : “Wm. Andrews,. I heard you said my mother was a yellow-necked b — t—h, and that I was a horse thief; if you said so, we can settle-it, if not, you can say so, and I have nothing against you.” Andrews said, “I never said it.” Defendant then said, “ it is all rightthat defendant did not try to shoot Andrews,, or say anything about shooting or killing him. Defendant’s testimony was substantially the same, with the-addition that he said he got the gun to make Andrews-retract what he had said, and to prevent being hurt, if Andrews had weapons. "We are satisfied that from this evidence the jury was warranted in finding an assault made-by the defendant. The authorities cited by the Attorney
The court, for the State, gaye the following instructions : The first was substantially, that if Painter assaulted Andrews with a gun, as charged in the indictment, on purpose and of malice aforethought, with intent to kill him, they should find him guilty. 2. The court instructs the jury that an assault with intent to kill may be made, although there is no striking or shooting. 3. The court instructs the jury that the fact that the defendant and prosecuting witness were on friendly terms immediately after the difficulty sworn to by the witnesses, and have remained so ever since, is no evidence of the innocence of the defendant, but if they believe from the evidence that, at the time the [assault was made, the defendant intended to kill said Andrews, they should convict. 4. The court declares the law to be, that the intent of the defendant to kill ¥m. Andrews must be gathered from the circumstances and opportunities of defendant to carry into execution such intent, and if the jury believe from the evidence that the defendant attempted to, and was prevented from carrying into execution his intent to kill said Andrews, then the jury should convict. 5. The court instructs the jury that if any witness manifested an interest in the premises, the jury should receive such testimony of the witness who appeared to manifest such interest with caution. 6. The court declares the law to be, that words, no matter how abusive in their nature, or no matter what the prosecuting witness may have said concerning the defendant or any member of his family, will not justify ah assault. 8. The court declares the law to be that force is not necessary to prevent one man from assaulting another. 11. The court instructs the jury that when a
To the giving of these instructions defendant objected, which objection ,being overruled, he excepted. The 7th instruction was as to the credit the jury might give a witness who had willfully sworn falsely, &e., and was unexceptionable. The 9th • properly defined a reasonable doubt, and the tenth correctly told the jury what punishment they might inflict, if they found the defendant guilty.
3. INTENT. The instructions for.the State were substantially correct declarations of law. The 11th, however, is unmeaning. When proof of a crime is made, there is no necessity for any presumption of intent, for that is an essential element of crime, and crimes are hot committed by accident. We have particularly noticed this instruction, because trial courts so frequently commit blunders by multiplying instructions. Why such an instruction was asked or given, we cannot conceive; but it could not have prejudiced the defendant, because it could not have benefited the prosecution. Nor could it have misled the jury, for it was no direction to them at all, but was simply absurd and meaningless.
Neither a purpose to make an assault, nor aiiy amount of preparation for doing so, will constitute an assault, un5. intent to kill, less followed hy some hostile demonstration’ against the person towai’d whom the purpose is entertained. If the defendant had gone and procured the gun for the express purpose of taking the life of Andrews, but, after coming up with Andrews, made no demonstration toward the accomplishment of that purpose, he would not have been guilty. A hare intent to commit an offense is not punishable by our law. In view of the evidence for the defense, these instructions' should have been given. They were unquestionably correct declarations of law, and there was evidence to warrant the court in giving them. The judgment is therefore reversed and the cause remanded.
Reversed