State v. Nelson

• Decision Date: 21 November 1893
• Citation: 118 Mo. 124,23 S.W. 1088
• Parties: STATE v. NELSON.
• Court: Missouri Supreme Court

23 S.W. 1088

118 Mo. 124

STATE v. NELSON.

Supreme Court of Missouri, Division No. 2.

November 21, 1893.

ASSAULT WITH INTENT TO KILL — EVIDENCE — INSTRUCTIONS.

On the trial for assault on a city marshal with intent to kill, defendant testified that he shot four times at the marshal, merely to scare him away, and with no intention to kill. Held, that defendant's own testimony justified a conviction, and did not require an instruction as for a simple assault.

Appeal from criminal court, Lafayette county; John E. Ryland, Judge.

William Nelson was convicted of assault with intent to kill, and appeals. Affirmed.

John Welborn, for appellant. R. F. Walker, Atty. Gen., for the State.

BURGESS, J.

The defendant was at the March term, 1893, of the criminal court of Lafayette county, convicted of an assault with intent to kill one Marcum Squires by shooting at him with a pistol, and his punishment fixed at imprisonment in the penitentiary for three years. The state offered evidence tending to show that at the time of the shooting, which occurred at the town of Napoleon, Lafayette county, on the 9th day of December, 1892, Marcum Squires was the city marshal of that town, and that he was informed that the defendant was carrying a pistol concealed, and had been exhibiting it in a saloon; that, as city marshal he attempted to arrest defendant, who ran, at the same time pulling a revolver out of his pocket, and, when ordered by the marshal to halt, instead of doing so turned and fired at him three or four times, hallooing at him (Marcum) to shoot his firecracker, at the same time firing two additional shots. Defendant admitted shooting at Squires four times, but testified as a witness in his own behalf that he did not shoot until after the marshal had fired at him, and that he had no intention to kill, but simply fired his pistol at Marcum for the purpose of scaring him only. Squires was not hit by either one of the shots. Defendant did not ask the court to instruct the jury as for common assault, but now insists, and did in his motion for a new trial, that it was the duty of the court to do so anyway. This is the only point insisted upon in this court for a reversal of the case. Section 4208, Rev. St. 1889, makes it the duty of the trial court to instruct the jury in writing upon all questions of law arising in the case which are necessary for their information, whether asked to do so or not. This has been the uniform rule announced by this court. State v. Palmer, 88 Mo. 570; State v. Banks, 73 Mo. 592; State v. Maguire, 113 Mo. 670, 21 S. W. Rep. 212. While the defendant testifies that he shot at the marshal three or four times with a deadly weapon, he also testifies that he had no intention to...