21 S.W. 212 (Mo. 1893), The State v. Maguire
|Citation:||21 S.W. 212, 113 Mo. 670|
|Opinion Judge:||Gantt, P. J.|
|Party Name:||The State v. Maguire, Appellant|
|Attorney:||Chas. T. Noland, Chas. P. Johnson and Thos. B. Harvey for appellant. John M. Wood, Attorney General, and Ashley C. Clover, Circuit Attorney, for the State.|
|Judge Panel:||Gantt, P. J. Sherwood and Burgess, JJ., concur.|
|Case Date:||January 31, 1893|
|Court:||Supreme Court of Missouri|
Appeal from St. Louis Criminal Court.--Hon. Jas. C. Normile, Judge.
(1) The indictment should have been quashed. It only alleges that the would was given "with the pistol aforesaid." State v. Green, 111 Mo. 585; State v. Blan, 69 Mo. 317; State v. Burns, 99 Mo. 542, dissenting opinion of Judge Sherwood. (2) The court should not have singled out the testimony of the defendant and specially charged the jury upon its weight. Such was a prohibited trespass upon the exclusive province of the jury. Muely v. State, 19 S.W. 915; State v. Young, 99 Mo. 666-676, the dissenting opinion of Judge Sherwood; Revised Statutes, sec. 4220. (3) The fact that defendant recently before the difficulty had lodged with the captain of police a report of misconduct of his subordinate officers,--the prosecuting witnesses--and the further fact that said officers had been informed before the difficulty of said report having been made against them by the defendant, are competent as proof of the animus or motive of the prosecuting witness, who, by defendant's plea of self-defense, is charged with being the aggressor in the fight. Proof of motive is always admissible. Wharton's Criminal Evidence [9 Ed.] sec. 784, and citations; 1 Bishop on Criminal Procedure [3 Ed.] secs. 1108, 1109; Stephens' Digest of Law of Evidence [Chase's Ed.] p. 13; Schemmer v. State, 51 N. J. Law, 29; Hunter v. State, 11 Vroom. 495; People v. Shea, 8 Cal. 538; State v. Jackson, 95 Mo. 652; State v. Nugent, 71 Mo. 136; State v. Forsythe, 89 Mo. 667; State v. Mounce, 106 Mo. 226. (4) The evidence in the case demanded an instruction for assault to kill without malice. State v. Branstetter, 65 Mo. 149; State v. Banks, 73 Mo. 592; State v. Palmer, 88 Mo. 568; State v. Elliott, 98 Mo. 150; State v. Young, 99 Mo. 675; State v. Melton, 102 Mo. 683; State v. King, 111 Mo. 576; State v. Crabtree, 111 Mo. 136. And it was the duty of the court to instruct for the lower grade, although not requested to do so by the defendant. State v. Stonum, 62 Mo. 596; State v. Branstetter, supra.
(1) The indictment is sufficient. Though perhaps obnoxious to criticism from the standpoint of the rhetorician or grammarian, it cannot be said that the meaning is thereby rendered so obscure as not...
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