67 Mo. 84 (Mo. 1877), State v. Painter

Citation:67 Mo. 84
Opinion Judge:HENRY, J.
Party Name:THE STATE v. PAINTER, Appellant.
Attorney:F. S. Hefferman for appellant. J. L. Smith, Attorney General, for the State.
Court:Supreme Court of Missouri

Page 84

67 Mo. 84 (Mo. 1877)



PAINTER, Appellant.

Supreme Court of Missouri.

October Term, 1877

Appeal from Douglas Circuit Court. --HON. J. R. WOODSIDE, Judge.

F. S. Hefferman for appellant.

J. L. Smith, Attorney General, for the State.


At the October term, 1875, of the circuit court of Douglas county, the defendant was indicted for an assault with intent to kill. The indictment alleged that " John Painter and Elisha Painter, both late of the county of Douglas, at and in the county of Douglas, on or about the first day of August, 1875, feloniously, willfully, on purpose and of his malice aforethought, an assault did make upon one William Andrews, in the peace of the State then and there being with dangerous and deadly weapons towit: an axe and a gun being then and there deadly weapons in the hands of the said John Painter and Elisha Painter, then and there held, with the intent him, the said Andrews, then and there to kill and murder, contrary," & c. At the October term, 1877, of said court, there was a trial of the cause, and defendant was found guilty and sentenced to the penitentiary for a term of two years. Motions for a new trial and in arrest of judgment were overruled, and defendant has prosecuted an appeal to this court.

1. ASSAULT TO KILL: sufficiency of indictment.

There is nothing in the objection to the indictment, that it does not allege that the offense was committed in Douglas county. It is clearly and explicitly alleged that the assault was made in that county. The objections, that it does not allege that the assault was made with malice, that it does not charge, that the defendant made an assault with deadly weapons likely to produce death, and that it does not show that an assault was committed, are equally groundless. The indictment was drawn on the 29th section, and the allegation that the axe and gun were deadly weapons, was sufficient without alleging that they were likely to produce death. That allegation is only necessary when other means than deadly weapons are employed in making the assault. The assault was specifically charged and alleged to have been made on purpose and of malice aforethought.

2. ____

The evidence on the part of the State was to the effect that William Andrews, on the 25th day of August, 1875, went to the blacksmith shop of defendant's father in Douglas county; that...

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