State v. Jones

• Citation: 86 Mo. 623
• Parties: THE STATE v. JONES, Appellant.
• Decision Date: 31 October 1885
• Court: United States State Supreme Court of Missouri

86 Mo. 623

THE STATE

v.JONES, Appellant.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Cregon Circuit Court.--HON. J. R. WOODSIDE, Judge.

AFFIRMED.

The indictment in this case, omitting the formal part, is as follows:

“In and upon one Leonard Allen 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 him, the said Leonard Allen, in and upon the back of him, the said Leonard Allen, with a certain pistol, loaded with powder and leaden balls, which he, the said Price Jones, then and there held in his right hand, with intent then and there him, the said Leonard Allen, on purpose, and of his malice aforethought, to kill and murder, against,” etc.

The testimony showed substantially the following facts: On the twenty-fourth of December, 1881, the defendant went to Mammoth Spring, in Oregon county, where he bought cartridges and loaded his pistol. Later in the same day, while at his brother's house, he was heard to say that “Leonard Allen was trying to beat him out of his girl, and if Allen tried it that night, he (defendant) intended to beat him.” At a dance at his brother's, on the night of the same day, defendant examined his pistol, revolved it so that the hammer would strike upon a cartridge, and, twenty or thirty minutes later, entered the room where the dancing was in progress, and shot Leonard Allen, cutting a hole in his clothing and abrading the skin upon his back. Allen was, at the time of the shooting, talking to the young lady referred to by defendant in his remark made during the day. Defendant was under the influence of liquor at the time of the shooting, was boisterous and abusive, and attempted, after he fired, to get to Allen to fight him, but was prevented from doing so, and taken from the room.

The court gave the following instructions for the state:

“1. The court instructs the jury that if they believe from the evidence that the defendant, at the county of Oregon, and state of Missouri, within three years next before the finding of the indictment, did feloniously, on purpose, and of his malice aforethought, shoot Leonard Allen with a certain pistol, with intent to kill him, the said Leonard Allen, they should find him guilty, and assess his punishment at imprisonment in the penitentiary for a period of not less than two years, nor more than ten years.”

“2. The court instructs the jury that the words on purpose, and of his malice aforethought, as used in the indictment, mean the intentional doing of a wrongful act, without just cause or excuse.”

“3. The court instructs the jury that the prosecution has admitted that George Allen, a witness for defendant, would, if present, make a certain statement (as read to the jury), as his evidence in the case, but it is not admitted that the same is true, but only that he would so swear if he were present.”

“4. The court instructs the jury that they are the sole judges of the testimony and of the weight thereof, and of the credibility of the witnesses, and if the jury believe that any witness has made any wilful false statement, or sworn wilfully false to any material fact, they should disregard the whole of said witness' testimony, and in arriving at the credibility of witnesses, they may take into consideration the fact that witnesses for defendant are his relatives.” “5. The jury are instructed that all persons are presumed to intend the natural and probable consequences of their own acts. Hence, if the weapon be such and so used as probably to produce death, the inference is that death was intended.”

“6. The court instructs the jury that if they entertain a reasonable doubt as to the guilt or innocence of defendant, they should acquit, but a doubt to authorize an acquittal, must be a real, substantial doubt, arising out of a due consideration of all the testimony, and not a mere conjecture or possibility of the defendant's inno, cence.”

The court gave the following instructions, at the request of the defendant:

“1. The court instructs the jury that although they might believe from the evidence that the defendant shot yet, unless they further believe from the evidence he shot said Leonard Allen with intent to...