State v. Hamilton

• Decision Date: 02 December 1902
• Parties: STATE v. HAMILTON.
• Court: Missouri Supreme Court

70 S.W. 876

170 Mo. 377

STATE v. HAMILTON.

Supreme Court of Missouri, Division No. 2.

December 2, 1902.

ASSAULT WITH INTENT TO KILL — ABSENCE OF INTENT — CONVICTION — CLERK IN STORE — RIGHT TO EJECT INTRUDER — NATURE OF WOUND — ANIMUS OF DEFENDANT — ADMISSIBILITY OF EVIDENCE.

1. Where one fires a pistol toward other persons on being ejected by them from a store, and wounds one of them, he cannot defend a prosecution for assault with intent to kill by testifying that he shot for effect, and did not intend to do any harm.

2. The right of the proprietor of a store to eject therefrom a turbulent and profane intruder inheres also in his clerks.

3. In a prosecution for assault with intent to kill, a physician's testimony that he was called to see the wounded person, and, on examination, found a gunshot wound about an inch to the right of the median line and three inches from the top of the collar bone, the ball ranging down, backwards and outwards, and remaining in the body, and never being located, is competent, as showing the close proximity of accused to the injured person, and tending to negative the defense that the shot was merely "fired to scare."

4. Where one accused of assault with intent to kill admits firing the shot, the admission of a doctor's evidence as to the nature of the wound, even if the evidence was incompetent, is not ground for reversal.

5. In a prosecution for assault with intent to kill, a witness' testimony that, a few moments before the shooting, accused entered witness' drug store, called for bologna sausage, placed his hand on his revolver, and, on being pulled out of the store, said it was not sausage, but trouble, he was after, and the testimony of another witness as to accused's purchase of cartridges shortly before the shooting, were admissible to show defendant's animus.

Appeal from circuit court, Dent county; L. B. Woodside, Judge.

George Hamilton was convicted of assault with a pistol with intent to kill, and appeals. Affirmed.

The following are instructions 6 and 7 given for the state: "(6) The court instructs the jury that the proprietor of a store has the right to prohibit any person from using profane language in his place of business, and to eject him therefrom for the continued use of such language; and if you believe from the evidence in this case that the defendant, George Hamilton, entered the storeroom of the witness Hogle, and began cursing and swearing therein, and continued to do so after being requested to desist therefrom, then the said Hogle had the lawful right to eject him from said room, and to use any means that would be reasonably necessary so to do, and the employés of said Hogle would have the lawful right to assist in the said ejection, whether called upon to do so or not. And if you believe from the evidence in this case that the said witnesses Hogle, Bennett, and Murry were only undertaking to eject the said defendant from the said storeroom, and only using such means as was reasonably necessary to perform said act, and were not attempting in any way to injure or hurt the said defendant, then the said act of ejecting the said defendant from the said storeroom would give him no legal cause or excuse for shooting either of the said parties. (7) The court, however, further instructs you that while the defendant is not held responsible for the act charged against him in this case if the shooting was done by accident, with no intention to kill either of the parties, yet if you believe and find from the evidence that the defendant became angry on account of being put out of the room, and recklessly fired his pistol at the crowd or into the crowd, without any intention of hitting any particular person, but in such a way that a reasonable man would know that the said shot might hit and kill some of the persons in said crowd, then and in such case he should not be acquitted, because he may have had no intention of killing the witness Bennett."

The following is instruction No. 3 given by the court on its own motion: "(3) The court instructs the jury that, in order to convict the defendant, it is necessary for the state to show and prove that the defendant shot at either the said Bennett, Murry, or Hogle with intent to kill either of them; and, although you may believe and find from the evidence that he shot the said Bennett, yet if you further believe and find from the evidence that he did not shoot at the said Bennett, or either of the other parties, but merely fired his pistol with the intention to scare the said parties, and by accident struck the said Bennett, then he would not be guilty of assault with intent to kill, and you should find him not guilty."

The following is the testimony of Dr. J. C. Welch: "Q. What is your name? A. J. C. Welch. Q. What profession do you follow? A. Physician and surgeon. Q. Were you called, as physician and surgeon, to wait on Berna Bennett after he was shot? A. Yes, sir. Q. State to the jury what kind of a wound did you find? (The defendant objected to this question for the reason that the result of this shot in this case, under this indictment, is not a material question, and is not a question to be decided by this jury, which said objection was by the court overruled, to which action of the court in so overruling said objection the defendant, by counsel, in open court, objected and excepted at the time.) A. Upon the night of the third of November, 1900 (I think it was November the...