Carrico v. State
| Decision Date | 31 July 1848 |
| Parties | CARRICO v. THE STATE. |
| Court | Missouri Supreme Court |
APPEAL FROM BENTON CIRCUIT COURT.
E. L. EDWARDS, for Appellant.
1. The court below erred in refusing to give the instructions asked for by the defendant, and in giving those the State asked for. 2. The court erred in refusing to set aside the verdict of the jury. 3. The court erred in overruling the defendant's motion to arrest the judgment.
STRINGFELLOW, Attorney-General, for The State.
1. The indictment is sufficient. 2. The instructions numbered 1, 2, 3, 4, 5, asked by defendant were properly refused. The law was correctly declared in the instructions given by the court. Jennings v. The State, 9 Mo. R. 862. 3. The verdict was according to the evidence. The jury were proper judges of the testimony and there being ample evidence to sustain their verdict, the court properly refused to set the same aside. 9 Mo. R. 862. 4. The court properly assessed the punishment, the jury failing to do so.
This was an indictment found in the Benton Circuit Court against Vincent Carrico, for an assault on the body of one Cord H. Grubben. The indictment charges that the defendant late, &c., on, &c., with force and arms, at, &c., in and upon one Cord H. Grubben, in the peace, &c., then and there being, unlawfully and feloniously an assault did then and there make, and that the said Carrico did then and there with force and arms, unlawfully and feloniously, and with a certain large piece of wood of the length of four feet, and the diameter of three inches, which piece of wood he the said Carrico, in his right hand then and there had and held, the said Cord H. Grubben then and there did strike, beat, bruise and wound in and upon the head and face of him the said Grubben, whereby he the said Grubben was then and there greatly maimed, wounded and disfigured, and then and there received great bodily harm, contrary to the form of the statute, &c. The second count charges that Grubben was “greatly wounded and received great bodily harm,” &c. The third count charges that by reason of the assault, &c., the said Grubben “received great bodily harm,” &c. To the indictment, the defendant pleaded not guilty, and a trial being had, the jury found him guilty, but not being able to agree in the assessment of his fine, reported that fact to the court, whereupon the court assessed the fine at $500. The defendant then moved for a new trial, and in arrest, assigning many reasons, which the court overruled, and he excepted and has brought the case to this court by appeal.
The questions presented by the record are first, those which arose during the progress of the trial, as the giving and refusal of instructions, and the assessment of the fine by the court, and secondly, the sufficiency of the indictment.
The defendant asked the court to instruct the jury as follows: 1. Although the jury may believe from the evidence that Carrico wounded, maimed or disfigured Grubben, or inflicted on him bodily harm, but not with a dangerous weapon, or with a weapon not calculated to produce death, the jury must find Carrico not guilty, unless they find that the wounds or bodily harm was of a dangerous character from which death might have probably ensued. 2. If the weapon used by Carrico was not a dangerous one, or calculated to produce death, the jury must find Carrico not guilty, unless the wounds were of a dangerous character from which death probably might have ensued. 3. If the jury believe from the evidence that Grubben provoked the assault by Carrico on him, and the assault was made by Carrico in the heat of passion, without a dangerous weapon and without any intent to kill him, they must find the said Carrico not guilty. 4. If the jury believe from the evidence that Grubben gave the first provocation and commenced the quarrel, and that Carrico without malice but in the heat of passion assaulted Grubben, but with no intent to kill him, the jury must find Carrico not guilty. 5. Unless the jury believe from the evidence that the stick was a dangerous weapon and likely to produce or cause the death of said Grubben, as it was used by the said Carrico, they must find the said Carrico not guilty.
Which the court refused to give, but instructed the jury as follows: 1. Though the jury may believe from the evidence that the defendant wounded said Grubben, yet, if they believe...
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