12 Mo.App. 327 (Mo.App. 1882), State v. Tate
|Citation:||12 Mo.App. 327|
|Opinion Judge:||THOMPSON, J.|
|Party Name:||THE STATE, Respondent, v. HATTIE TATE, Appellant.|
|Attorney:||C. O. BISHOP, for the appellant. J. R. HARRIS, for the respondent.|
|Case Date:||June 06, 1882|
|Court:||Court of Appeals of Missouri|
1. One charged with a crime may testify as to the intent with which he did the act charged.
2. The defendant's testimony must be taken into consideration in determining what instructions should be given.
3. If the defendant testifies to facts which reduce the offence, instructions appropriate to that offence must be given, whether asked or not.
APPEAL from the St. Louis Criminal Court, LAUGHLIN, J.
Reversed and remanded.
The defendant was convicted of an assault with intent to kill, and sentenced to imprisonment for two years in the penitentiary. We see nothing substantial in the grounds urged by the learned counsel for the defendant for reversing the judgment, except the last, which is, that the court, having undertaken to charge the jury of its own motion, erred in failing to give them an appropriate instruction that they might convict of a common assault under section 1265 of the Revised Statutes, which reads as follows: " Any person who shall assault, or beat, or wound another, under such circumstances as not to constitute any other offence herein defined, shall, upon conviction, be punished by a fine of not exceeding one hundred dollars, or imprisonment in the county jail not exceeding six months, or by both such fine and imprisonment." The evidence, while not fully warranting the verdict which was rendered, afforded a hypothesis for such an instruction. The defendant's testimony tended to show that the weapon with which the assault was made was a small pen-knife, and all the testimony showed that the cuts were but slight, not requiring surgical attention. The defendant's testimony as to the intent with which she made the assault, was as follows: " I went over to Lucy Hill's to cut her. I went there for that purpose, as she spilled my blood, and I was bound to spill some of hers. * * * I did not try to kill her. I only wanted to draw her blood because she drew mine." This evidence, under the rulings of the supreme court, in The State v. Banks (73 Mo. 592), renders it incumbent upon us to reverse this judgment. In that case, the defendant, a negro, procured a pistol beforehand, and in the...
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