State v. Mitchell

Decision Date16 December 1902
PartiesSTATE v. MITCHELL.
CourtMissouri Supreme Court

Appeal from circuit court, Clinton county; A. D. Burnes, Judge.

Newton Mitchell was convicted of an attempt to commit murder, and appeals. Affirmed.

Jno. A. Cross & Sons, for appellant. The Attorney General and Sam B. Jeffries, for the State.

GANTT, J.

Defendant was tried upon an information filed by the prosecuting attorney of Clinton county at the May term, 1901, and convicted of an attempt to murder John O. Warren. His punishment was assessed at five years in the penitentiary. The information is in the following words: "State of Missouri, County of Clinton — ss.: In the Circuit Court of Clinton County, Missouri, May Term, 1901. State of Missouri vs. Newton Mitchell. Thomas W. Walker, prosecuting attorney within and for the county of Clinton in the state of Missouri, upon his oath informs the court that Newton Mitchell, late of the county of Clinton in the state of Missouri, on the 16th day of March, A. D. 1901, at the said county of Clinton, state aforesaid, then and there feloniously, willfully, premeditatedly, deliberately, on purpose and of his malice aforethought did make an attempt to kill and murder one John O. Warren then and there being, and in said attempt and towards the commission of said offense and felony he, the said Newton Mitchell, then and there feloniously, willfully, premeditatedly, deliberately, on purpose and of his malice aforethought with a pistol, commonly called a revolver, being a dangerous and deadly weapon, loaded with gunpowder and leaden balls, which he, the said Newton Mitchell. then and there had and held, did shoot at and through a window of a dwelling house and into said dwelling house, then and there occupied by the said John O. Warren as a residence and place of habitation, with the belief and calculation, then and there had, that the said John O. Warren was then and there within said dwelling house and at the place therein towards which the said Newton Mitchell discharged and shot the said pistol with the intent then and there him, the said John O. Warren, feloniously, willfully, premeditatedly, deliberately, on purpose and of his malice aforethought to kill and murder, but the said Newton Mitchell did then and there fail in the perpetration of said offense, but through no fault of his. And the said Thomas W. Walker, prosecuting attorney, as aforesaid, upon his oath aforesaid, further informs the court that one Charles Wilhoit, late of the county of Clinton, state aforesaid, before the said offense and felony was committed in the manner and by the means aforesaid, was then and there feloniously, willfully, premeditatedly, deliberately, on purpose and of his malice aforethought present, aiding and abetting, advising and counseling the said Newton Mitchell the offense and felony aforesaid to do and commit; contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state." A second count in the information charged the defendant with an assault with intent to kill, but, as the jury acquitted him on that count, it is not necessary to incumber this opinion with it. On the 16th day of March, 1901, John O. Warren, with his wife, was living in the town or village of Trimble, in Clinton county, of this state. Some time previous to the difficulty the defendant had boarded with Warren, the prosecuting witness. They had known each other for 20 years or more. On the night of the 16th of March Mrs. Warren had attended church, and on her return home she and her husband were standing in the lower room of their house, when they heard a noise indicating that some one outside was prowling around the house. Warren took a lantern, and started out, and as he came around the house saw two men walking off. He followed, and they quickened their pace. He followed them quite a distance, and then returned home. The taller of the two men had on a black overcoat and a black hat, and the smaller of the two wore a light overcoat and a black hat. From his long acquaintance with these men, their manner of walking and general appearance, Warren took them to be Newton Mitchell, the defendant, and Charles Wilhoit. After Warren returned from following these men, he went upstairs, where his wife and children had gone to bed. The defendant, having boarded in the house, knew how it was arranged. A bed stood in one corner of the downstairs room, and a dresser not far from it. After Warren had retired, — perhaps an hour, — a pistol was fired immediately at his house, and in five or ten minutes a second discharge of the pistol occurred. Examination was made of the result of these shots, and it was found that two shots had gone through the window. The bullet from one went into the pillow in the lower room, and the other hit the corner of the dresser. The window sash and pillow, with the balls found, were exhibited, identified, and offered in evidence. The evidence further disclosed that when Mrs. Warren came out of church that night with her little daughter the defendant came up, and imposed his presence on her, and she pushed her daughter between him and her. He followed her a part of the way to her home, — to within 100 yards of her house, — and then desisted. The daughter corroborated her mother's evidence. Another witness (Whitmore) saw defendant that night going in the direction of Warren's house in company with another man, taller than he was, who was wearing a...

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26 cases
  • United States v. Conigliaro
    • United States
    • U.S. District Court — District of Massachusetts
    • June 7, 2019
    ...592 (1960) ; and firing a deadly shot into a bed where the actor mistakenly believed the intended victim was sleeping, State v. Mitchell , 170 Mo. 633, 71 S.W. 175 (1902). In cases of factual impossibility, "the defendant's mental state was the same as that of a person guilty of the complet......
  • State v. Davis
    • United States
    • Missouri Supreme Court
    • May 18, 1928
    ...never intended to shoot and kill Edmon Lourie does not excuse or exonerate him. He made the attempt. State v. Hayes, 78 Mo. 307; State v. Mitchell, 170 Mo. 633; People v. DuVeau, 94 N.Y.S. 225. The rule is that when there is an intent to commit a crime and any act is done towards its commis......
  • Hardy v. State
    • United States
    • Maryland Court of Appeals
    • September 1, 1983
    ...at an empty bed where he mistakenly believes the victim is sleeping has committed attempted murder, but not an assault. State v. Mitchell, 170 Mo. 633, 71 S.W. 175 (1902). If a defendant procures the services of a "feigned accomplice"--someone who pretends to go along with a criminal undert......
  • State v. Davis
    • United States
    • Missouri Supreme Court
    • May 18, 1928
    ...295 S.W. (Mo.) 554. The indictment is sufficient in every respect. Sec. 3683, R.S. 1919; State v. Broyles, 295 S.W. (Mo.) 554; State v. Mitchell, 170 Mo. 633; State v. Scroggs, 170 Mo. 153; State v. Hayes, 78 Mo. 307; People v. DuVeau, 94 N.Y. Supp. 225; 1 C.J. 310, note 12. (2) The statute......
  • Request a trial to view additional results
3 books & journal articles
  • § 27.07 Defense: Impossibility
    • United States
    • Carolina Academic Press Understanding Criminal Law (CAP) 2022 Title Chapter 27 Attempt
    • Invalid date
    ...Yaffe, Note 88, supra; Daniel Yeager, Decoding the Impossibility Defense, 56 U. La. L. Rev. 359 (2018).[128] E.g., State v. Mitchell, 71 S.W. 175, 177 (Mo. 1902). The words "seemingly" and "almost certainly" are used in the text because one English trial judge, in giving instructions to a j......
  • § 27.07 DEFENSE: IMPOSSIBILITY
    • United States
    • Carolina Academic Press Understanding Criminal Law (CAP) 2018 Title Chapter 27 Attempt
    • Invalid date
    ...Impossibility Attempts: A Speculative Thesis, 5 Ohio St. J. Crim. L. 523 (2008); Yaffe, Note 88, supra.[128] . E.g., State v. Mitchell, 71 S.W. 175, 177 (Mo. 1902). The words "seemingly" and "almost certainly" are used in the text because one English trial judge, in giving instructions to a......
  • TABLE OF CASES
    • United States
    • Carolina Academic Press Understanding Criminal Law (CAP) 2018 Title Table of Cases
    • Invalid date
    ...v. State, 594 So. 2d 703 (Ala. Crim. App. 1991), 370 Mitchell, Commonwealth v., 135 A.3d 1097 (Pa. Super. 2016), 407 Mitchell, State v., 71 S.W. 175 (Mo. 1902), 377, 379 Mlinarich, Commonwealth v., 542 A.2d 1335 (Pa. 1988), 549 Moe, State v., 24 P.2d 638 (Wash. 1933), 275 Molasky, State v.,......

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