State v. Elvins

• Decision Date: 30 June 1890
• Citation: 101 Mo. 243,13 S.W. 937
• Parties: STATE v. ELVINS.
• Court: Missouri Supreme Court

13 S.W. 937

101 Mo. 243

STATE v. ELVINS.

Supreme Court of Missouri.

June 30, 1890.

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

1. An indictment charging that the accused feloniously, and with malice aforethought, assaulted and shot at a person named therein, with a Winchester rifle loaded with powder and leaden bullets, with intent to kill and murder, sufficiently charges an assault, with a deadly weapon, with intent to kill, under Rev. St. Mo. § 1262.

2. Evidence that the accused became engaged in an altercation with the proprietor of a saloon, which terminated in his being ejected therefrom; that he thereupon procured a Winchester rifle, returned, and shot at the proprietor, — is sufficient to sustain a conviction for assault, with a deadly weapon, with intent to kill.

3. The making of the statement by the prosecuting attorney in his closing argument, "Gentlemen, you know these assaults with intent to kill are becoming too common in this country, and in south-east Missouri," furnishes no ground for reversal of a judgment convicting the defendant of such an assault.

4. A verdict of "Guilty as charged in the indictment" is proper in form without specifying the degree of the offense, as required by Rev. St. Mo. § 1927, where the offense found is inferior to that charged.

Appeal from circuit court, St. Francois county; JAMES D. FOX, Judge.

Indictment under section 1262, Rev. St. 1879, omitting formal parts, as follows: "That Ralph Elvins, on the ___ day of March, 1886, at and in the county of St. Francois and state of Missouri, in and upon one Barney Flynn, feloniously, on purpose, and of his malice aforethought, did make an assault, and did then and there, on purpose, and of his malice aforethought, feloniously shoot at him, the said Barney Flynn, with a certain Winchester rifle loaded with powder and leaden balls, which he, the said Ralph Elvins, then and there held in both his hands, with intent then and there the said Barney Flynn, on purpose and of his malice aforethought, feloniously to kill and murder, against the peace and dignity of the state. MERRILL PIPKIN, Prosecuting Attorney." The testimony shows that about 11 o'clock on the night of the 13th of March, 1886, defendant became engaged in a difficulty in Barney Flynn's saloon, in St. Francois county, Mo., with a man by the name of Edwards, and also attempted to raise a disturbance with some other parties, who were in the saloon playing cards at the time. Flynn, the saloon-keeper, in trying to keep him quiet, became engaged in an altercation with him, and finally put him out of the saloon, and closed the door. After he was put outside, Seward Burke, one of the witnesses, tried to get him to go home, but he insisted on going up town. In speaking to him about the trouble he had had, Burke said to him, "He might have killed you, and you might have killed him;" and then defendant said, "If that is the case, I will go down home, and get my Winchester." He then went home, got his Winchester rifle, came back to the saloon, pushed open the door, and, putting his gun in at the opening, shot at Barney Flynn once or twice. Flynn had been told by Burke that defendant had gone to get his Winchester; and, when he returned, he had his gun ready to defend himself, and both shot at about the same time. The trial resulted in the defendant being found guilty, and his punishment assessed at three years' imprisonment in the...