State v. Hoffman
| Citation | 78 Mo. 256 |
| Parties | THE STATE v. HOFFMAN, Appellant. |
| Decision Date | 30 April 1883 |
| Court | United States State Supreme Court of Missouri |
Appeal from Stoddard Circuit Court.--HON. R. P. OWEN, Judge.
REVERSED.
S. M. Chapman for appellant.
D. H. McIntyre, Attorney General, for the State.
Defendant was indicted for an assault with intent to kill Orson B. Miller, and on a trial of the cause, at the March term, 1882, of the Stoddard circuit court, was found guilty and his punishment assessed at ten years' imprisonment in the penitentiary.
From the judgment he has appealed to this court, and contends that the indictment is defective because it is not alleged therein that the pistol “loaded with powder and leaden balls,” with which the shooting is charged to have been done, is a deadly weapon. Where the indictment alleges that the accused shot at, or stabbed another, it is not necessary to allege that the gun or pistol, “loaded with powder and leaden balls,” or knife or dagger, with which the shooting or stabbing was done, is a deadly weapon. Such instruments are recognized by the statute as deadly, and it is only when the assault is made with other instruments, that it is necessary to allege their deadly character. State v. Greenhalgh, 24 Mo. 373.
Orson B. Miller was permitted to testify that he had arrested one Galloway, and that the defendant, while Galloway was in his custody, said to Galloway in response to a remark “let's go,” made by Miller to Galloway, “You need not go unless you want to;” that after Miller procured a horse for Galloway, defendant asked permission to speak to Galloway, and, after he had done so, defendant left them, but afterward went into a house where Miller and Galloway were, and asked, “What is the matter,” to which Galloway replied: “Oss has my pistol and won't give it up.” Defendant then said: “That is my pistol; lay it down where you got it.” Miller said: “I took this pistol from Galloway and did not get it from the stable, but, if it is yours, I will give it to you when Galloway gets started, but will not lay it down.” Miller and Galloway then started to leave the house, when defendant said: “That is my pistol, and I am going to have it,” and thereupon drew his pistol and fired at Miller, the ball taking effect in his side. He fired a second shot which struck Miller in the head.
The testimony in relation to the arrest of Galloway, and to what was said by defendant prior to the shooting, is objected to as irrelevant. It was a detailed account of the circumstances connected directly with the assault, showing its character, and was competent.
Whether Miller was an officer authorized to make an arrest, is wholly immaterial. Defendant was not indicted for resisting an officer in the discharge of his duty, nor was he the party arrested. If Miller had been shot by Galloway, or the defendant had been charged with resisting Miller, as an officer, in the discharge of his duty, the question of his authority to arrest Galloway would be material. This is also an answer to the objection to the testimony of Norrid, who stated that on the day of the shooting, Miller told him he had Galloway under arrest. The fact that he had Galloway in his custody was not controverted, and this evidence could not possibly have prejudiced defendant.
Defendant also complains that the prosecuting attorney stated to the jury in his argument that: “When defendant saw the struggle between Galloway and Miller, he came to the prisoner's rescue.” The facts in evidence formed a very good foundation for such an argument. Certainly it was not such a distortion of the evidence as would justify a reversal of the judgment.
The prosecuting attorney also stated in his closing argument to the jury: “That after defendant had fired the shot that felled Miller to the floor, he jumped out of the back door and fled, leaving Miller weltering in his gore.” Defendant's counsel insists that this was a gratuitous statement, unsupported by any evidence in the case. Norrid testified that defendant “fired on Miller, and, as Miller turned, he fired again, and Miller fell from the shot, and Hoffman ran out of the south door into the field.”
The remaining point made by counsel is, that defendant was not present when the court passed upon his motion for a new trial, although his counsel...
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Snyder v. Commonwealth of Massachusetts
...little room for construction. One court has gone so far as to require the presence of the defendant upon a motion for a new trial (State v. Hoffman, 78 Mo. 256), in opposition to the judgments of this court in Schwab v. Berggren and Lewis v. United States, supra. As to the rule where the cr......
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State v. Neal
...in the next two paragraphs. Does the fact that appellant was confined in jail and could not be present, make a difference? In State v. Hoffman, 78 Mo. 256, 259, it was reversible error to overrule the defendant's motion for new trial in his absence, where his counsel had requested that he b......
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State v. McNamara
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