124 Mo. 412 | Mo. | 1894
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
“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
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.