27 S.W. 1106 (Mo. 1894), State v. Pennington

Citation:27 S.W. 1106, 124 Mo. 388
Opinion Judge:Sherwood, J.
Party Name:The State v. Pennington, Appellant
Attorney:Edmund Burke for appellant. R. F. Walker, Attorney General, and Morton Jourdan, Assistant Attorney General, for the state.
Case Date:November 05, 1894
Court:Supreme Court of Missouri
 
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Page 1106

27 S.W. 1106 (Mo. 1894)

124 Mo. 388

The State

v.

Pennington, Appellant

Supreme Court of Missouri, Second Division

November 5, 1894

Appeal from Moniteau Circuit Court. -- Hon. D. W. Shackleford, Judge.

Affirmed.

Edmund Burke for appellant.

(1) The court erred in the matter of giving instructions. (2) The wife of defendant was an incompetent witness. State v. Arnold, 55 Mo. 89; State v. Willis, 119 Mo. 185. (3) The court erred in permitting proof of a different assault than the one on trial. (4) The court erred in permitting proof of the former indictment. (5) The second instruction asked upon the part of the appellant was also unexceptionable, should have been given, and its refusal was a ground of error. State v. Vansant, 80 Mo. 72. (6) The fifth instruction asked by the appellant is the law, and should have been given, and its refusal constituted such error as entitles the appellant to a reversal of the judgment. State v. Palmer, 88 Mo. 568. (7) The sixth instruction on the part of the appellant should also have been given, and its refusal is error. State v. McClure, 25 Mo. 340. (8) The seventh instruction asked in behalf of the defendant should also have been given, and its refusal was error, and is not remedied by the seventh instruction given by the court; the latter declares that the jury may disregard the whole of such witnesses' testimony. The seventh instruction in behalf of the appellant declares that the jury may disregard the whole or any part of such witness's testimony. State v. Miller, 93 Mo. 269. (9) The eighth instruction asked in behalf of the appellant has been approved by this court, and should have been given. State v. Palmer, 88 Mo. 573. (10) The ninth instruction asked in behalf of the appellant has been approved by this court, and should have been given. State v. Lowe, 93 Mo. 551.

R. F. Walker, Attorney General, and Morton Jourdan, Assistant Attorney General, for the state.

(1) The wife was a competent witness. 1 Greenleaf's Evidence, sec. 334; State v. Arnold, 55 Mo. 89. (2) The evidence as to the attempted second assault was competent to show defendant's intention when he made the first assault. (3) The admission in evidence of the first indictment did not constitute reversible error.

OPINION

[124 Mo. 390] Sherwood, J.

For an assault with intent to kill his wife, made by defendant with a...

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