State v. Mounce
Citation | 17 S.W. 226,106 Mo. 226 |
Parties | The State v. Mounce, Appellant |
Decision Date | 12 October 1891 |
Court | United States State Supreme Court of Missouri |
Appeal from Dent Circuit Court. -- Hon. C. C. Bland, Judge.
Affirmed.
L. B Woodside for appellant.
(1) The third instruction given on the part of the state is erroneous, as it virtually told the jury that the fact that John Mounce was the defendant, and a witness in his own behalf, did not entitle him to credit. (2) The fourth instruction is also erroneous as it directed the jury that they might disregard testimony, even if they believed it to be true. The evidence in this case does not bring it within the rule laid down by the courts. Bank v. Murdock, 62 Mo. 74; State v. Palmer, 88 Mo. 568. It leaves a question of law to be decided by the jury, i. e., what were the material averments in the indictment. Fugate v Carter, 6 Mo. 267. (3) The instructions refused defendant should have been given, and those given in lieu thereof were not sufficient to put the case fairly before the jury.
John M Wood, Attorney General, for the State.
Defendant was indicted in the circuit court of Dent county, at its October term, 1888, for a felonious assault. The indictment charged that on the thirtieth day of May, 1888, in said county and state, he feloniously, on purpose and wilfully, with a pistol, assaulted one John W. McDonald with the intent to kill him. He was tried at the April term, 1889, and convicted, and his punishment assessed at a fine of $ 100, from which he appealed.
The evidence introduced on the part of the state tended to prove the charge made, whilst that introduced on the part of the defendant tended to show that the act was done in self-defense.
Appellant complains of the action of the court in admitting evidence of a difficulty between the prosecutor and defendant a few days before the assault; and in giving instructions, numbered 3 and 4, on the part of the state, and refusing instructions, numbered 1 and 2, asked for by defendant.
The only objection that was made to the introduction of testimony was to evidence offered by the state of a prior difficulty between the defendant and prosecuting witness; this objection was overruled by the court, and the evidence admitted, to which defendant excepted. The witness stated that they had a difficulty a few days before, and the defendant put his hand in his pocket, like he was going to draw a weapon, but he did not draw any.
The defendant testified in his own behalf, and among other things to the previous difficulty.
The court gave the following instructions for the state, which were objected to at the time, by the defendant, and exceptions properly taken:
The instructions asked by defendant and refused by the court, numbered 1 and 2, were mere repetitions of those given by the court on reasonable doubt and self-defense, and for that reason were properly refused.
As the indictment charged the defendant with having wilfully and on purpose assaulted ...
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The State v. Maddox
...error was committed in refusing the one. State v. Walton, 74 Mo. 271; State v. Mathews, 98 Mo. 119; State v. Moore, 101 Mo. 317; State v. Mounce, 106 Mo. 226. Besides, should have been refused, because little more than an argument to the jury. (6) There was no reversible error in the instru......