State v. King

• Decision Date: 10 October 1892
• Citation: 111 Mo. 576,20 S.W. 299
• Parties: STATE v. KING.
• Court: Missouri Supreme Court

20 S.W. 299

111 Mo. 576

STATE v. KING.

Supreme Court of Missouri, Division No. 2.

October 10, 1892.

ASSAULT WITH INTENT TO KILL — EVIDENCE OF VENUE — SUFFICIENCY — INSTRUCTIONS.

1. Where, in a trial for assault with intent to kill, the only evidence to show the venue is the testimony of the prosecuting witness that he and defendant were at a certain place when they had their difficulty, and it does not appear whether or not such place, if a town or village, is within the state, it is insufficient.

2. Where defendant in a criminal case is on trial for assault with intent to kill, by stabbing, cutting, and wounding the prosecuting witness, it is proper to instruct the jury that they may find defendant "guilty of assault with intent to kill or do some great bodily harm," if they find the stabbing or cutting was without malice aforethought.

3. The giving of an instruction containing a mere abstract proposition of law is harmless error, though it might well be omitted.

Appeal from circuit court, Sullivan county; G. D. BURGESS, Judge.

Indictment of Charles King, Jr., for an assault with intent to kill. From a judgment of conviction, he appeals. Reversed.

John M. Swallow, for appellant. The Attorney General, for the State.

GANTT, P. J.

The defendant was indicted by the grand jury of Sullivan county for an assault with intent to kill, convicted, and sentenced to two years in the penitentiary. He assigns as error in his trial that there was no proof that he committed the offense in Sullivan county. J. D. Elliott, the party assaulted, says he was in Cora with a load of ties, when he and the defendant had their difficulty. But it nowhere appears that Cora, if a town or village, is in Sullivan county, or in this state. Such evidence has been held insufficient to establish the venue in a number of cases in this court. State v. McGinniss, 74 Mo. 245; State v. Hartnett, 75 Mo. 251; State v. Hughes, 82 Mo. 86; State v. Burgess, 75 Mo. 541. Unlike State v. Sanders, 106 Mo. 188, 17 S. W. Rep. 223, and State v. Jackson, 86 Mo. 18, the other facts and circumstances do not supply the failure caused by the want of direct evidence.

2. Various objections are made to the instructions, particularly the tenth for the state. That instruction authorizes the jury to find defendant guilty of an assault with intent to kill, or do some great bodily harm, if they found the stabbing or cutting was without malice aforethought. This is the law since the adoption of section...