State v. Clarkson

• Decision Date: 26 November 1888
• Citation: 96 Mo. 364,9 S.W. 925
• Parties: STATE v. CLARKSON.
• Court: Missouri Supreme Court

9 S.W. 925

96 Mo. 364

STATE v. CLARKSON.

Supreme Court of Missouri.

November 26, 1888.

1. CRIMINAL LAW — APPEAL — REJECTION OF EVIDENCE — BILL OF EXCEPTIONS.

On a trial for assault with intent to kill, the rejection of evidence of a statement by the prosecuting witness as to the manner in which he held the pistol after he had taken it from defendant, the bill of exceptions not setting out the statement proposed to be shown, and not showing that the witness had given material evidence on that subject, nor that there was other error in the ruling, is not cause for reversal.

2. SAME — WEIGHT OF EVIDENCE.

Unless the whole of the evidence is preserved in the bill of exceptions, the supreme court will not inquire whether the verdict is against the evidence.

3. SAME — TRIAL — EXCLUSION OF EVIDENCE BY JUDGE.

The judge may exclude improper testimony, though the prosecuting attorney makes no objection to its admission, and he may give the reason for its exclusion.

4. HOMICIDE — ASSAULT WITH INTENT TO KILL — VERDICT.

A verdict of guilty of assault to kill is sufficient as one of guilty of assault with intent to kill.

Appeal from St. Louis criminal court; JOHN C. NORMILE, Judge.

Indictment against Thomas G. Clarkson for assault with intent to kill. Verdict of guilty, and defendant appeals.

J. D. Storts, for appellant. The Attorney General, for the State.

BRACE, J.

The defendant was indicted and convicted in the criminal court of St. Louis of an assault with intent to kill, and sentenced to six months' imprisonment in jail. The indictment is in good form. The evidence is not all preserved in the bill of exceptions, which states that the evidence for the state tended to prove the defendant guilty as charged, and then sets out enough to show such to be the fact. The evidence for the defendant tended to show that the prosecuting witness first assaulted him, and that he shot in self-defense. "Unless the whole of the evidence is preserved in the bill or exceptions, the supreme court will not inquire whether the verdict is against the evidence." State v. Fritterer, 65 Mo. 422. The only exception saved on the admission of evidence is to the action of the court in ruling out, on an attempted impeachment of the evidence of the prosecuting witness, a statement alleged to have been made by him to another witness, soon after the occurrence, as to the manner in which he held the pistol after the shooting, and after he had taken it from the defendant. The...