State v. Murphy
| Decision Date | 29 May 1883 |
| Parties | STATE OF MISSOURI, Respondent, v. THOMAS MURPHY, Appellant. |
| Court | Missouri Court of Appeals |
APPEAL from the St. Louis County Circuit Court, EDWARDS, J.
Reversed and remanded.
M. F. TAYLOR, for the appellant.
The defendant was convicted upon an indictment for assault with intent to kill. The testimony for the state tended to establish the commission of the offence, as charged, by shooting at the prosecuting witness with a pistol, so that the bullet passed through the coat and vest of the witness. A fight was going on between other parties, one of whom was a friend of the defendant. The defendant, testifying in his own behalf, said:
The court, of its own motion, gave apt instructions concerning the offence of assault with intent to kill, as defined by the Revised Statutes (sect. 1263), but gave no instructions as to a common assault, as defined by the Revised Statutes (sect. 1565). The case is an exact paralell with The State v. Tate (Mo. App., No. 2476), in which this court, following to its necessary result the decision of the supreme court in The State v. Banks (73 Mo. 592), held that the conviction was erroneous. We have nothing to do with the proposition that the defendant's testimony was at war with moral possibilities, and with the common law. It must be held that the jury might rationally have found that the defendant fired into a crowd of men, with a deadly weapon, without intending that the bullet should hit any one; in other words, that he did not intend the natural and necessary consequences of his act, since he so testifies. Upon authority of The State v. Banks and The State v. Tate ( supra), the judgment is reversed, and the cause remanded.
All the judges concur.
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State v. Lynn
...intent to kill or do great bodily harm to Chandler, he was guilty of a common assault, just as hypothesized in the instruction. State v. Murphy, 14 Mo. App. 73. Indeed, he could only have been guilty of a common assault if he did fire at the car and not at Chandler, for if the injury had fo......