State v. Barton

• Decision Date: 01 February 1898
• Citation: 44 S.W. 239,142 Mo. 450
• Parties: STATE v. BARTON.
• Court: Missouri Supreme Court

44 S.W. 239

142 Mo. 450

STATE v. BARTON.

Supreme Court of Missouri, Division No. 2.

February 1, 1898.

ASSAULT WITH INTENT TO KILL — INDICTMENT — EVIDENCE — INSTRUCTIONS.

1. An indictment in a prosecution for assault with intent to kill, based on Rev. St. 1889, § 3489, which states that B., at a certain time and place, "in and upon one M., feloniously, on purpose, and by his malice aforethought, did make an assault, and then and there, on purpose and of his malice aforethought, feloniously assault, beat, and wound him, the said M., * * * with a deadly weapon, with intent then and there him, said M., on purpose and of his malice aforethought, feloniously to kill," as it uses the statutory terms defining the crime, is sufficient.

2. An indictment for assault with intent to kill, which alleges that accused did feloniously, with malice aforethought, make an assault upon M., with a deadly weapon, "with intent then and there the said M., on purpose and of his malice aforethought, feloniously to kill and murder," plainly charges intent, as required by Rev. St. 1889, § 3489, providing punishment for an assault "with intent to kill, maim," etc.

3. The state showed, in a prosecution for assault with intent to kill, that accused had threatened M. (the complaining witness), and tried to provoke an assault, which M. tried to avoid, whereupon accused struck M. with a deadly weapon without provocation. Accused showed that M. was the aggressor, and tried to cut him, and that the assault was in self-defense. Held, that a verdict on such conflicting evidence would not be disturbed.

4. It is not error to use the word "felonious" or "feloniously" in an instruction without defining it.

5. It is not error to fail to instruct on the lower grades of assault in a prosecution for assault with intent to kill, where the evidence for the state, if true, precludes any less offense than that charged, and the evidence of accused, if true, establishes a clear case of self-defense.

6. The failure of the court to instruct on a question cannot be considered on appeal where no exception was taken below.

Appeal from circuit court, Chariton county; W. W. Rucker, Judge.

George Barton was convicted of assault with intent to kill, and he appeals. Affirmed.

Chas. G. Singleton and L. N. Dempsey, for appellant. The Attorney General and Sam. B. Jeffries, for the State.

SHERWOOD, J.

The defendant, a negro, appeals from a conviction of assault with intent to kill, his punishment being assessed at imprisonment in the penitentiary for the term of three years. The prosecution is based on section 3489, Rev. St. 1889.

1. One count in the indictment reads as follows: "The grand jurors aforesaid, on their oath aforesaid, do charge and present that George Barton, on the 29th day of October, A. D. 1896, at and in the county of Chariton and state of Missouri, in and upon one Peter Miller, feloniously, on purpose, and of his malice aforethought, did make an assault, and then and there, on purpose and of his malice aforethought, feloniously assault, beat, and wound him, the said Peter Miller, with a large and heavy stone, of the weight of five pounds, which was then and there a dangerous and deadly weapon, likely to, produce death and great bodily harm, which said stone he, the said George Barton, then and there had and held in his right hand, with intent then and there him, the said Peter Miller, on purpose and of his malice aforethought, feloniously to kill and murder, against the peace and dignity of the state." This indictment uses the statutory terms, and substantially follows approved forms. 1 Archb. Cr. Prac. & Pl. (8th Ed.) 885; 3 Chit. Cr. Law, 828; Kelly, Cr. Law, § 576. The intent is plainly charged in the indictment, and in this respect that instrument pointedly differs from the one in State v. Norman, 136 Mo. 1, 37 S. W. 827, where no such intent was alleged.

2. The state's version of the affair, and supported by evidence, was the following: Peter Miller, the prosecuting witness, lived on a farm four miles south of Dalton, Chariton county, Mo. On the evening of the 29th day of October, 1896, he...