State v. Grant

Decision Date17 May 1898
Citation144 Mo. 56,45 S.W. 1102
CourtMissouri Supreme Court
PartiesSTATE v. GRANT.

3. Accused, charged with assault with intent to kill, denied being drunk, and stated he had only taken one drink on his way home. Held, that his custom in regard to taking home whisky when he went to town, and the fact of his being drunk when he surrendered to the sheriff, were immaterial matters, and could not be made the basis for impeachment.

4. Accused, on cross-examination, denied that he had stated that C. (the prosecuting witness) was on him, beating him with a monkey wrench, and that he shot him off. The impeaching witness testified that accused told him that C. was coming at him, and struck him with something, and he fell, and when he recovered C. was on him, and that he had the pistol in his hand, between him and C., and fired it. Held, that the discrepancy was too slight to prejudice accused.

5. It is incompetent, for purpose of discrediting his testimony, to show that accused had been arrested for selling liquor.

6. It is not ground for reversal that the prosecuting witness in a criminal prosecution offered to prove his own good character, where it was rejected by the court.

7. Misconduct of counsel, though raised in the motion for new trial, will not be reviewed, where the facts or language are not preserved in the bill of exceptions or otherwise proved.

8. Where accused assaulted the prosecuting witness with a loaded pistol, in a vital part of the body, the law presumes that accused intended to kill him.

9. Under an indictment drawn under Rev. St. 1889, § 3489, providing punishment for malicious assault with intent to kill, an accused may be convicted under section 3490, which provides for punishment of assault with intent to kill without malice, and a charge which fails to instruct as to malice or felonious intent is not defective.

Appeal from circuit court, Boone county; John A. Hockaday, Judge.

George Grant was convicted of the crime of assault with intent to kill, and he appeals. Reversed.

Turner & Hinton, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, Asst. Atty. Gen., for the State.

BURGESS, J.

The defendant was convicted in the circuit court of Boone county of the crime of assault with intent to kill one David W. Cook, by shooting at him with a pistol, and his punishment fixed at three years' imprisonment in the state penitentiary. He has appealed.

At the time of the difficulty the defendant and Cook were neighbors, living near each other, but upon opposite sides of a road, six or seven miles from Columbia, in said county. Their residences were something near 200 yards apart. In the afternoon of July 18, 1896, Cook and a man by the name of Andrews were in a lot on Cook's farm near the road taking the canvas off a binder, about which work it became necessary to have a wrench, and Cook went to his house to get one. In the meantime defendant returned from town, where he had been to have some plows sharpened, which he then had in his wagon, and, under the influence of liquor, had stopped, and was talking to Andrews. As soon as Cook came up, defendant drove on up in front of his house, entered his pasture, and drove down on the inside of his fence, until he arrived at a point where Cook and Andrews were at work. Cook and defendant then had some words in regard to a religious meeting which was going on in that neighborhood, in the course of which the defendant called Cook "a d__n liar." By this time Cook had gotten to the fence on the opposite side of the road from defendant. When the defendant called Cook "a d__n liar," he jumped out of his wagon, and ran his hand in his pocket as if he was going to draw his revolver. Cook then said to him, "You have got a revolver, and you are going to shoot, you stinking old coward." To which defendant replied, "Yes, damn you; I am." Cook had gotten over the fence into the road by this time, and defendant began to shoot, and when he fired the first shot Cook ran towards him, but defendant fired three shots before Cook got to him and grabbed the barrel of the pistol. They then grappled with each other for the possession of the pistol, when it was again discharged by defendant, the ball entering to the left of Cook's navel, ranging downward, and lodging in his groin. When Cook was shot, he fell to the ground, and defendant jumped on him; but he threw him off, and got on top of him. Cook then struck him a time or two in the face with his fist. He had no weapons about him. He and Grant had never had any trouble before. After the shooting Cook went to St. Louis, and was operated upon. The surgeons cut into his leg, but were unable to find the bullet. Up to the time of the trial he had not been able to use the leg on the side of the injury. It seemed to be paralyzed.

1. The evidence of Cook with respect to the extent of his injury, and the operation which he underwent in consequence thereof, was admitted over the objection and exception of defendant. This ruling is assigned for error. The contention is that this evidence was irrelevant under the charge in the indictment; that, the charge being shooting at Cook with intent to kill, the defendant's guilt did not in the slightest degree depend on the effects or consequences of his shot, but solely on the specific intent entertained by defendant when he fired it. We are unable to concur in this view. No better evidence could be adduced, we think, as to the intent of defendant to kill at the time he fired the shot, than it entered a vital part, and its serious consequences; and it makes no difference that the indictment charged defendant with shooting "at," with intent to kill, instead of shooting or wounding with such intent. The rule is the same. It cannot be doubted but that the serious wounding of Cook in a vital part was some stronger evidence of defendant's intention to kill him than if he had wounded him but slightly, in some part not vital. From this wounding, in the absence of countervailing testimony or circumstances, the law will presume an intent to kill, and this evidence only tended to show what the law presumes.

2. In the cross-examination of the defendant, who testified as a witness in his own behalf, the prosecuting attorney was permitted, over the objection of defendant, to interrogate him as to his custom and habit with respect to taking home whisky when he came to town. Cook had testified that defendant was drunk, or under the influence of liquor, at the time of the difficulty, which was denied by defendant, who also testified that he only took one moderate drink that day, and that was out of a half pint, while on his way home, which he had purchased just before starting. As to what defendant's custom was with respect to taking whisky home with him when he came to town, it was in no way...

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    • United States
    • United States State Supreme Court of Missouri
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