State v. Moore

• Decision Date: 13 May 1902
• Citation: 68 S.W. 358,168 Mo. 432
• Parties: STATE v. MOORE.
• Court: Missouri Supreme Court

68 S.W. 358

168 Mo. 432

STATE v. MOORE.

Supreme Court of Missouri, Division No. 2.

May 13, 1902.

ASSAULT WITH INTENT TO KILL — EVIDENCE — CONDITION OF DEFENDANT'S CLOTHING — REPUTATION OF DEFENDANT — INSTRUCTIONS — REVERSIBLE ERROR.

1. A charge that: "Defendant is charged in the second count of the indictment with the crime of assault with intent to kill, without malice, and this is the only matter for your determination; the other two counts being withdrawn from your consideration. * * * `Malice,' as above used, means the intentional doing of a wrongful act without just cause or excuse," — and a subsequent charge that if defendant purposely and intentionally made an assault on the prosecuting witness, and shot him with intent to kill, he was guilty of an assault with intent to kill, were not objectionable as contradictory, and as, when taken together, authorizing the jury to find malice to be an ingredient of the offense.

2. In a prosecution for a felonious assault with intent to kill, the fact that the nephew of the prosecuting witness was permitted to testify that just prior to the difficulty he saw a man coming along the lane from the prosecuting witness' house was not ground for reversal.

3. In a prosecution for a felonious assault with intent to kill, it was not error to refuse to permit defendant to prove the frequency of visits paid to him by the prosecuting witness.

4. In a prosecution for a felonious assault with intent to kill, it was not error to refuse to permit a witness who saw defendant at a point three or more miles from the scene of the difficulty, and at least an hour later, and after he had been at his home, to testify as to whether his shirt was torn or not, where no proof was offered that he at that time had on the same shirt.

5. The fact that a witness, asked whether he knew defendant's general reputation for good morals, replied, "I don't consider it good," was not ground for reversal, especially where many others testified that his reputation was bad.

Appeal from circuit court, St. Charles county; E. M. Hughes, Judge.

Nelson K. Moore was convicted of a felonious assault, and appeals. Affirmed.

At the September term, 1899, of the circuit court of St. Charles county, the defendant was indicted for a felonious assault upon Zachary Woods. The indictment contained three counts, — the first for a felonious assault, with malice aforethought; the second, a felonious assault, with intent to kill said Woods; the third, for a felonious assault and wounding of said Woods, whereby his life was endangered. Defendant was arraigned, and entered his plea of not guilty. At the March term, 1900, of said court, the defendant was put on his trial, and convicted on the second count, and his punishment assessed at imprisonment in the penitentiary for two years and six months. His motion for a new trial was sustained on the ground of the admission of illegal evidence, and the cause continued. The cause was finally heard on the 29th day of April, 1900, at the March adjourned term of said court; and the defendant was again convicted of a felonious assault with intent to kill said Woods, as charged in the second count of said indictment, and his punishment assessed at two years in the penitentiary, and sentenced accordingly. From that sentence this appeal is prosecuted.

C. E. Peers and Silver & Brown, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, for the State.

GANTT, J. (after stating the facts).

The prosecuting witness, Woods, and defendant Moore, were the owners of adjoining farms some three miles from Wentzville, in St. Charles county, at the time of the alleged assault. A few days prior to the difficulty out of which this prosecution arose, Woods was notified to put in the posts for a hog fence between him and defendant. On March 25, 1899, defendant was not on his premises when Woods went to set the stakes for the fence; and the latter designated the line by setting the stakes, and told defendant's son to show his father the line when he returned. Woods and his nephew, Ben Walker, then rode out on the public road in the direction of Wentzville, and soon met defendant, also horesback, coming from Wentzville, and riding west, in the direction of his home. When they met they checked their horses, and accosted each other in a friendly way. Woods then said to defendant that he had put some stakes up, and told defendant's son to show him how the fence would run, and asked him if he wanted the line to run with Foster's, and defendant answered, "Yes;" and, according to defendant's evidence, he said he did not care for a few feet of land. The three then started on, Woods and Walker proceeding north, and defendant west; and, just as they did so, Woods called upon young Walker to witness that defendant said he was willing for his line to run with Foster's. Upon hearing this, defendant turned his horse about, and rode up between Woods and Walker. As to what occurred then there is a conflict between the witnesses. Woods says defendant rode up to him, and said, "You want to tear loose or cut loose from me, you d____n son of a bitch!" to which Woods instantly replied, "You are a d____n liar," and defendant came at him with his right hand in his coat pocket, and Woods reached over and grabbed defendant's right hand, to prevent the drawing of his pistol, and the lunging of the horses dragged Woods off of his, and he fell to the ground, and defendant's horse carried him some 20 or 25 yards, when he dismounted and left his horse, and came hurrying back with his pistol in his hand, and, just before he shot, said to Woods, "You have been giving me dirt a long time," and began to fire at him, while Woods vainly endeavored to grasp his hand, or the weapon, to prevent his shooting him. Defendant fired four shots, three of which took effect upon Woods, one penetrating the neck; another striking the lapel of his overcoat and failing to enter his body; the third entering his left ear, ranging upward and backward, and coming out of his skull. The fourth shot took effect in defendant's left arm. At the third wound, Woods fell in the road, insensible. This account of the difficulty was corroborated in all material points by young Walker, who, however, says he did not hear the first words passed between defendant and Woods when defendant turned and rode back to them, and only heard Woods, in reply to something defendant said, call defendant a "d____n liar." J. H. Dyer, who was in no way related to either party, rode up just as the war of words began. He testified that, as he came in hearing distance, he heard Moore, the defendant, say to Woods, "You are a G____ d____n son of a bitch," and saw Woods grab him, and defendant attempt to push Woods off with his left hand, when he called to them, "Men, don't do that," and Woods hung onto Moore's, and, in the turn of the horses, Woods fell on the ground, and defendant's horse started west, when defendant jumped off of him, and came back with his pistol in his hands, and Woods attempted to keep him from shooting him. Woods had nothing in his hands. Defendant shot Woods three times. Per contra, defendant, testifying in his own behalf, gives the following account of the meeting between himself and Woods: When they met, they each greeted the other in a friendly way, and stopped their horses, and Woods, addressing defendant, said: "Nelse, I was by where the boys had worked this morning, and changed them stakes. That way that you set them would run the line down in the field." To which defendant responded: "Well, Zach, I don't care. I don't care for a few feet of land." Thereupon, he says, "Zach seemed to be a little excited, and said, `Are you willing for your line to run with Foster's?'" and defendant answered, "If Foster's line is right, of course, I am." At this, "Zach started to ride off, and he turned in his saddle, and with his left hand motioned to Ben Walker, and said, `Ben, you hear that, don't you?' And I saw Zach was excited, and it kind of flustrated me. I didn't know what was the matter with the man. I says, `Zach, there's no use for you to fly off about anything. I have done right about the fence. If you had done as you agreed to do when we changed ends, there would not have been any trouble about the fence in any way. Now, Zach, you know when we changed ends of fences that I told you you might take rails enough out of my end to make a good fence between you and me, and I went away, and you took about half of my...