State v. Greenhalgh

• Decision Date: 31 January 1857
• Citation: 24 Mo. 373
• Parties: THE STATE, Defendant in Error, v. GREENHALGH, Plaintiff in Error.
• Court: Missouri Supreme Court

24 Mo. 373

THE STATE, Defendant in Error,

v.GREENHALGH, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1857.

1. An indictment for an assault upon one J. C., with intent to kill, charging that J. G., the defendant, “with a certain gun, then and there loaded with gunpowder and divers leaden balls, which said gun he, the said J. G., then and there had and held in his hands, to, against and upon the said J. C., and then and there did unlawfully, feloniously, on purpose, and of his malice aforethought, the said gun did cock, raise and present, with the intent then and there unlawfully, feloniously, and of his malice aforethought, the said J. C. to shoot and kill; and that the said J. G. would have executed his said purpose and intent had he not been prevented and intercepted from so doing, contrary,” etc., is sufficient.

Error to Cooper Circuit Court.

Stephens and Davis, for plaintiff in error.

I. The court erred in overruling the demurrer. (State v. Jackson, 17 Mo. 544; State v. Leonard, 22 Mo. 449; 1 Chit. C. L. 249; 3 T. K. 106; 1 Chit. Pl. 227; Steph. Pl. 318; 7 Wend. 129; 10 Johns. 289.)

II. The court erred in overruling defendant's motion in arrest of judgment. The provision of the statute upon which the indictment is founded does not include the use of fire-arms as an aggravated or indictable offense, unless a shot be fired. (R. C. 1845, p. 350, Sec. 34; Ros. Crim. Ev. 776; 1 Ros. on Crimes, 720.) The offense charged is only punishable in a summary manner before a justice of the peace. (R. C. 1845, p. 672.) Neither count in the indictment charges the defendant “with an attempt to commit an offense,” so as to bring the case within the provisions of Art. 9, Sec. 1. (R. C. 1845, p. 408.) The only weapon charged to be used was a gun, yet no shot was fired. No count in the indictment attempts to charge that the gun was a dangerous or deadly weapon. (State v. Jourdan, 19 Mo. 212.) If the gun be charged to be used as a fire-arm, must there not be a shot fired also? And if the gun be charged in the indictment to be the instrument with which the assault is made, must the gun not be charged to be a deadly weapon, there being no shot or discharge of the piece averred?

Ewing (attorney-general), for the State.

I. The indictment is sufficient. (R. C. 1845, p. 350, Sec. 34.) The assault being charged as having been made with a gun, is a sufficient averment that the weapon was deadly. It is equally an assault with a deadly weapon, whether the gun is used in an attempt to shoot or strike; and being a deadly weapon, whether used in one mode or the other, the offense is properly charged when the indictment alleges an assault with a gun, without stating the manner in which it was attempted to be used. Courts will take judicial notice that a gun is a deadly weapon.

II. The objection to the indictment that the section of the statute under which it was framed excludes the use of firearms as an offense prohibited by it, when no shot is fired, assumes, 1st, that a gun is not a deadly weapon, except when used in shooting; and 2d, that an assault by means of a gun could not be made in a manner likely to produce death or great bodily harm, unless in an attempt to discharge it, which is an absurdity.

RYLAND, Judge, delivered the opinion of the court.

The defendant was indicted for a felonious assault upon the body of John Crawford with a gun, with an intent to kill. The defendant appeared to the indictment and filed his demurrer, which was overruled; he then pleaded not guilty--was tried and convicted. He then filed his motion in arrest of judgment, which being overruled, he brings the case here. There are five counts in this indictment. The third count is as follows: “And the jurors aforesaid, upon their oath aforesaid, do further present, that...