State v. Wood, 124 Mo. 412

State v. Wood

124 Mo. 412 | Mo. | 1894

Gantt, P. J.

This is an appeal from the Lincoln circuit court. The indictment is in the following words:

“State of Missouri,

County of Lincoln.

! ‘In the circuit court of Lincoln county, Missouri, at the-spring term, A. D. 1893.

“The grand jurors for the state of Missouri duly impaneled, sworn and charged to inquire within and for the body of the county of Lincoln and state of Missouri, upon their oath charge and present that *415Eobert Wood on or about tbe eighth day of January, A. D. 1893, at the county of Lincoln in the state of' Missouri, in and upon one William Shannon, 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 him, the said William Shannon in and upon the back of the head and neck, of him the said William Shannon, with a certain shotgun loaded with powder and leaden balls as aforesaid, he, the said Eobert Wood, then and there in both his hands had and held, with the intent, then and there, him the said William Shannon on purpose and of his malice aforethought, to kill and murder, against the peace and dignity of the state.

“Edgak B. Woolfolk,

“Prosecuting Attorney Lincoln County, Mo.”

The prisoner was convicted and sentenced to the penitentiary for a term of four years. The errors assigned for reversal will be considered in the order of appellant’s brief.

I. The defendant challenged the sufficiency of the indictment, both by his motion to quash, and in his motion in arrest of judgment, for the reason that it failed to charge that the assault complained of was committed with a felonious intent, or with an intent feloniously to MU.

The indictment is sufficient. It specifically charges the assault to have been committed feloniously, on purpose, and with malice aforethought “with the intent then and there the said William Shannon, on purpose and of his malice aforethought to kill and murder.” It was decided as early as the case of the State v. Comfort (1838), 5 Mo. 357, that in an indictment under the section under which this indictment was preferred, it was unnecessary to conclude with the words “with intent feloniously to kill,” but that it was sufficient to *416aver “with intent to kill.” The ruling in that case was followed in State v. Chandler, 24 Mo. 371. And this indictment is in the identical form expressly approved in State v. Jones, 86 Mo. 623 and State v. Webster, 77 Mo. 566. The intent averred is that denominated by the statute itself, and ex vi termini includes the felonious intent required to charge a felony and could not have appeared any more clearly by the unnecessary repetition of the word “feloniously.”

II. There was no error in excluding the evidence concerning a previous difficulty which had occurred on the same day between defendant and William Shannon. After that difficulty they separated and Shannon went to his home and was standing, unarmed, in the yard to his dwelling house, talking to the witness Finley. The defendant was seen by Finley stealthily creeping along the yard fence, with a double-barrelled gun in his hands. Finley advised Shannon he had better go into the house, and Shannon immediately started to do so, when the defendant Woods shot him in the back of the head. Defendant, at one time, stated this was an hour after the first difficulty, and at another that it was only a few minutes, or so long only as was necessary for him to go to his home a half mile distant, get his gun, and then creep up the fence to Shannon’s house to shoot him. Under the circumstances the former difficulty was no justification of his conduct, and the court correctly excluded it.

III. There was nothing in the evidence calling for an instruction on the lower grade for an assault to kill, under section 3490. The evidence fully established a case of an assault, on purpose, and with malice aforethought, and with a deadly weapon, and under such circumstances the court should not invite the jury to find for a lower grade than is made by the evidence.

*417IY. The court properly refused to receive the affidavit of the juror to impeach his verdict by showing that the different jurors each placed the number of years for defendant’s imprisonment on a .piece of paper, and then added the several numbers and divided the sum by 12 to determine his punishment. The paper was not even found in the jury room, and, if it had been, with no other explanation, it would not impeach the verdict, and, excluding this juror’s affidavit, there was none. The judgment is affirmed.

All of this division concur.