8 S.W. 365 (Mo. 1888), State v. Rambo

Citation:8 S.W. 365, 95 Mo. 462
Opinion Judge:Black, J.
Party Name:The State v. Rambo, Plaintiff in Error
Attorney:W. C. Kelly for plaintiff in error. B. G. Boone, Attorney General, for the state.
Case Date:May 21, 1888
Court:Supreme Court of Missouri
 
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Page 365

8 S.W. 365 (Mo. 1888)

95 Mo. 462

The State

v.

Rambo, Plaintiff in Error

Supreme Court of Missouri

May 21, 1888

          Appeal from Phelps Circuit Court. -- Hon. C. C. Bland, Judge.

          Affirmed.

         W. C. Kelly for plaintiff in error.

         The motion to quash the indictment and in arrest of judgment should have been sustained on the ground that nine different offences could not be charged in the same count in the indictment. Kelley's Prac. 102, 105; 42 Ind. 240; 3 Greenl. Evid. [Redf. Ed.] p. 21, sec. 22.

         B. G. Boone, Attorney General, for the state.

          OPINION

          [95 Mo. 463] Black, J.

         The indictment is in one count. The substance of the charge is, that Charles, Elmer, Alvin, and Addis Rambo, of their malice aforethought, with guns and pistols, and with intent to kill, shot at J. W. Clark and eight other persons, who are named.

         The evidence for the state shows that John P. Marlow resided in a house which he had procured of Alvin Rambo. This house and a wagon-shop, which was used by Rambo, were in the same inclosure, and not more than thirty or forty feet apart. Marlow had procured the use of the house until such time as he could erect a log house on his own land, about a half mile distant. On the day of the difficulty, the persons named in the indictment as having been shot at, and others, some twenty in all, including Walter Clark, were assisting Marlow in house-raising. Clark and the Rambos were not on friendly terms, the former having been warned to keep off the premises of Alvin Rambo. Marlow invited the men, assisting him, to his house for their dinner, [95 Mo. 464] and, as they were approaching the house, Alvin Rambo stepped up to the opening in the enclosure with hammer in hand, and at the same time Charles Rambo placed a gun over the fence and shot towards the crowd; but Reed hit the gun so that the shot went upwards. At the same time Clark retaliated by shooting at Charles Rambo with a pistol. Elmer Rambo had a gun which he endeavored to use, and Addis Rambo assisted, by reloading Charles' gun, which Charles fired the second time.

         There

Page 366

is some evidence that the affray began between Alvin Rambo and Rigden, each claiming that the other made the first assault; but the weight of the evidence is, that the Rambos had determined to resist the entrance of the inclosure by Clark, and that Charles Rambo made the first assault...

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