State v. Fine

• Decision Date: 11 December 1929
• Docket Number: 29962
• Citation: 23 S.W.2d 7,324 Mo. 194
• Parties: The State v. William Fine, Appellant
• Court: Missouri Supreme Court

23 S.W.2d 7

324 Mo. 194

The State v. William Fine, Appellant

No. 29962

Supreme Court of Missouri

December 11, 1929

Appeal from Lawrence Circuit Court; Hon. Emory E. Smith Judge.

Reversed and remanded.

Stratton Shartel, Attorney-General, and Henry Depping, Assistant Attorney-General, for respondent.

(1) The information is sufficient both as to form and substance. State v. Baird, 271 Mo. 13; State v Shelton, 267 S.W. 941; State v. Harris, 209 Mo. 441; State v. Coleman, 284 S.W. 799; State v. Broyles, 295 S.W. 553. It is not necessary to allege that the weapon used was deadly. State v. White, 274 S.W. 17. (2) The evidence is sufficient to sustain the verdict of the jury. If the testimony for the State was credited by the jury, it proved an assault with intent to kill. State v. Painter, 67 Mo. 84; State v. Jordan, 285 Mo. 71. The striking or wounding of the person assaulted is unnecessary to constitute an assault with intent to kill. State v. Broyles, 295 S.W. 551. A presumption of malice attends the use of a deadly weapon. State v. Roberts, 280 Mo. 685; State v. Duestrow, 137 Mo. 67. (3) The evidence did not warrant an instruction on intent to kill without malice or on common assault. The evidence clearly showed defendant guilty of assault with intent to kill with malice aforethought as defined by Sec. 3262, R. S. 1919. State v. Higgerson, 157 Mo. 402; State v. Hodges (Mo.), 295 S.W. 786; State v. Turnbo (Mo.), 267 S.W. 849; State v. Cruts, 288 Mo. 115, 231 S.W. 602. It is not the duty of the trial court to invite the jury to find the defendant guilty of a less offense than that of which the evidence clearly showed him guilty. State v. Bartlett, 209 Mo. 407. When a deadly weapon is used in making an assault upon a person, the law, in the absence of countervailing testimony or circumstances, will imply or presume malice as the concomitant of the act. State v. Musick, 101 Mo. 260; State v. Roberts, 280 Mo. 685. Instructions 1 and 2 when read together properly declare the law applicable to this case. State v. Painter, 67 Mo. 84; State v. Baird, 271 Mo. 13; State v. Duestrow, 137 Mo. 67; State v. Harris, 209 Mo. 431.

Davis, C. Henwood and Cooley, CC., concur.

OPINION

DAVIS

In an information filed by the prosecuting attorney in the Circuit Court of Lawrence County, defendant was charged with assault with intent to kill with malice aforethought. The jury returned a verdict of guilty as charged in the information, and assessed his punishment at imprisonment in the penitentiary for a term of two years. He appealed from the judgment entered on the verdict.

The evidence presented for the State warrants the finding that one O. C. Samuels rented from defendant on shares five acres of ground owned by defendant's mother. On September 27, 1928, the following occurred:

Samuels was on the land cutting corn. Defendant approached with a rock in his hand and said to Samuels that he would rather he would not cut the corn. Samuels replied, "You know why I rented the ground." Defendant then said, "Yes, but I don't aim for you to get the fodder." Samuels said that he told him that was the way he had rented it, and he was to have two-thirds. Defendant said, "You don't aim to cut it." Defendant ordered him to get out, cursing him. Samuels then said that he told him he would not leave, and defendant replied that he would leave or he would kill him, and that if he was not gone by the time he got back, he would kill him. Defendant went to his house and returned with a rifle, cursing Samuels and his father. At the muzzle of his rifle he marched Samuels to the house and off the place. The rifle was cocked. About an hour elapsed between the first and second visit. The gist of the testimony of Samuels was corroborated by Mr. and Mrs. Arnhart, both of whom testified to admissions, except the swearing. Defendant told the constable, who arrested him, that the rifle was loaded.

Defendant's testimony tended to show that he was entitled to the fodder, as a custom obtained in that country to leave the fodder on the land. He said Samuels came to the field and began cutting corn during his absence, and, when he remonstrated with him, Samuels cursed him and drew back his corn knife as though to behead him. Defendant then went to his home and obtained the rifle and the rock. He said he did not get the rifle because Samuels drew the knife, but because he would not leave. Defendant testified that he did not intend to shoot Samuels, but obtained his gun for the purpose of driving him out. He said that the rifle was loaded, and that he pointed it at Samuels.

I. The motion for a new trial charges that the information is defective, in that it fails to aver that the defendant pointed a loaded rifle within shooting distance at the prosecuting witness. As the information charges that defendant pointed at him a rifle loaded with powder and a leaden ball, we take it that the gist of the complaint relates to the then present ability of defendant to inflict injury on Samuels. The information avers that defendant did then and there unlawfully, wilfully and feloniously in and upon the person of Samuels, 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 point a rifle loaded with powder and leaden ball, at Samuels, which defendant held in his hands with intent then and there Samuels, on purpose and of his malice aforethought, feloniously to kill and murder.

An assault has been defined to be any attempt, or any threatening gesture showing in itself or by words accompanying it, an immediate intention, coupled with the ability, to commit a battery. [2 R. C. L. 525.] It will be noticed that the information avers that an assault was made by defendant on Samuels with a loaded rifle, and that it was made in and upon his person. Consequently, it may be implied from the use of the word assault that defendant had the present ability to commit a battery and that he was within shooting distance of Samuels at that time. Moreover, the information avers that the assault was in and upon Samuels's person, and the assault could not have occurred in and upon his person, if he had not been within shooting distance. Precedents sustain the validity of the information. [State v. Shelton, 267 S.W. 938; State v. Baird, 271 Mo. 9, 195 S.W. 1010.]

II. It is said that the conviction of defendant for assault with intent to kill with malice was not justified by the evidence. To that we cannot agree. The evidence upon the part of the State develops a purpose to inflict an injury, unless Samuels complied with the condition. It also tends to show that defendant had no right to impose such condition and, consequently, the same rule applies as though an unconditional intent to inflict an injury obtained. The facts developed herein are evidentiary of an assault with intent to kill with malice under Section 3262, Revised Statutes 1919, and it was for the jury to say whether defendant entertained malice. It would seem that no doubt obtains but that the facts establish an assault with intent to kill without malice. [State v. Epperson, 27 Mo. 255; State v. Dooley, 121 Mo. 591, 26 S.W. 558.] The question treated is whether the facts are evidentiary of an assault with intent to kill with malice aforethought. We think they are, for, from the facts adduced, the jury were authorized to find that malice existed, and instructions to that effect, on a similar state of facts, were approved in State v. Painter, 67 Mo. 84. Therefore, the evidence justified an instruction for assault with intent to kill with malice aforethought.

III. However, an assignment of error charges the trial court with error in failing to instruct the jury on assault with intent to kill without malice, under Section 3264, Revised Statutes 1919. Although defendant did not request an instruction of that nature, he complains in his motion for a new trial of the failure of the court to give it, and, as it involves the law of the case, if the facts justified it, the court is to be charged with error in failing to give it. [State v. Burrell, 298 Mo. 672, 252 S.W. 709.]

The facts develop that a dispute arose between Samuels and defendant relative to the corn. Defendant charged an intention to take corn and fodder belonging to him. Defendant testified that Samuels brandished a corn knife and drew it back as though to behead him. Defendant stated that he did not get the rifle because Samuels drew the corn knife, but because he would not leave. Defend...