State v. Montgomery

• Decision Date: 14 February 1887
• Citation: 3 S.W. 379,91 Mo. 52
• Parties: The State v. Montgomery, Appellant
• Court: Missouri Supreme Court

3 S.W. 379

91 Mo. 52

The State v. Montgomery, Appellant

Supreme Court of Missouri

February 14, 1887

Appeal from Lawrence Circuit Court. -- Hon. M. G. McGregor, Judge.

Affirmed.

No brief for appellant.

B. G Boone, Attorney General, for the state.

An act against the person of another, done with a felonious intent is equally criminal whether it affects the person intended or another. State v. Payton, 90 Mo. 220; State v Henson, 81 Mo. 384; 1 Bish. Crim. Law [5 Ed.] sec. 326, et seq.

Norton, C. J. Brace, J., absent.

OPINION

Norton, C. J.

Defendant was indicted, tried, and convicted, in the Lawrence county circuit court, of an assault with intent to kill one George Browning, and his punishment assessed at a fine of five hundred dollars, from which he has appealed, and assigns for error the action of the court in receiving improper evidence, and giving improper instructions.

The evidence introduced on behalf of the state tends strongly to show that defendant sought, provoked, and brought on a fight, in a public street, in the town of Lawrenceburg, Lawrence county, with one McBride, in which defendant fired three shots from a pistol at said McBride, with the intention of killing him; that one of these shots missed McBride and struck Browning, who was in said street, on the arm, inflicting a severe and painful wound. It is the reception of this evidence which is complained of. The evidence was properly admitted, for it is well settled that, if, with a felonious intent, A shoots at B, to kill him, and misses B and wounds C, then the law transfers the felonious intent with which the ball started from B to C. This principle is expressly approved in the cases of State v. Henson, 81 Mo. 384, and State v. Payton, 90 Mo. 220, 2 S.W. 394.

The law of the case was fairly given to the jury. The instructions after properly defining the words, malice aforethought, and feloniously, told the jury, in substance, that, if they believed, from the evidence, the defendant feloniously shot at McBride, with the intention of killing him, missed him and shot Browning, they would find him guilty. They were further instructed that, if they believed defendant shot at McBride in defence of himself (there being some evidence in the case that McBride fired the first shot), they would acquit. The jury were further told under what circumstances defendant had a right to shoot in self-defence, and also to acquit, if th...