State v. Musick

• Decision Date: 16 June 1890
• Citation: 101 Mo. 260,14 S.W. 212
• Parties: STATE v. MUSICK.
• Court: Missouri Supreme Court

14 S.W. 212

101 Mo. 260

STATE v. MUSICK.

Supreme Court of Missouri.

June 16, 1890.

ASSAULT WITH INTENT TO KILL — MALICE — PRACTICE — EVIDENCE.

1. On trial for assault with intent to kill, where the undenied evidence for the state shows that defendant told another that he would put a hole through the prosecuting witness unless he took back some lies that he had been telling on defendant, and that shortly after, when he appeared, defendant accused him of telling these lies, and immediately fired at him, it is proper to refuse an instruction looking to the conviction of defendant of a lower grade of offense than that for which he is indicted, though he swears that he acted in self-defense, and had no intention of killing.

2. In such case the law presumes an intent to kill from the acts of defendant, and it is proper to so instruct the jury.

3. An instruction as to self-defense which is more favorable to defendant than the state, but which has a marginal indorsement of "Given because not objected to," constitutes no error.

4. The absence of defendant from the courtroom during the examination of a juryman, and the substitution of another, cannot be proved by ex parte affidavit, but must be shown by a bill of exceptions on the record, if it is to be considered on appeal.

5. A petulant observation by the court in regard to the continued objections of counsel for defendant does not constitute reversible error, where it does not appear that it could have damaged defendant.

6. Argument by the prosecuting attorney to the jury that in the case, as disclosed by the evidence, defendant's intent can only be judged from his acts is legitimate, and within the record.

7. A motion for new trial on the ground of newly-discovered evidence, unsupported by affidavit, and which does not disclose the exercise of diligence, is properly denied.

8. Evidence by defendant that after the shooting he surrendered himself to the sheriff is irrelevant and inadmissible.

9. A mere recital in the motion for new trial that one of the instructions was found on a table in the court-room does not prove the fact, nor would such fact prove that all of the instructions were not given to the jury when they first retired, when the jury passed one night in such room considering their verdict.

10. The refusal to permit defendant to file a supplemental motion for new trial constitutes no error where there is none in the previous rulings of the court.

Appeal from circuit court, Moniteau county; E. L. EDWARDS, Judge.

Indicted under the provisions of section 1262, Rev. St. 1879, for an assault with malice aforethought, the defendant on being tried was convicted, his punishment assessed at four years in the penitentiary, and judgment accordingly; hence his appeal. The testimony for the state was substantially as follows: The defendant called at the store of P. R. Burnett, at Wolfe's Point, in Moniteau county, Mo., late in the evening of July 25, 1887, just as he (Burnett) was closing up, and inquired for the "blacksmith." The blacksmith was A. J. Smith, the prosecuting witness and injured party, who was engaged in the business of blacksmithing at that place. Burnett told him he was over home, but he would be along pretty soon. Defendant said "he had been telling lies on him, and he had to take it back or he would put a hole through him." He walked behind the counter, and commenced looking in the show-case, and by this time Smith stepped into the door. As soon as defendant saw him, he said: "Old man, you have been telling lies on me, and have to take them back." Smith said: "Louis," or "Bud, what's the matter? Explain yourself." Defendant then pulled out his revolver, came out from behind the counter, and advanced two or three steps towards Smith, and shot him, the bullet taking effect in and breaking his right arm. Before defendant shot, Burnett, who was standing between the two men, attempted to prevent defendant from shooting, but was compelled by the latter to stand aside. He then pointed the pistol at Smith's breast, and attempted to shoot him again, but it snapped; and when he could not make the pistol fire he commenced striking him over the head with it. Smith then seized him and pushed him over down behind the counter and held him until he promised he would let him alone if he would let him up. Smith let him up and went back to the house. There had been no previous difficulty between the parties, and nothing had been or was said or done by Smith to provoke the difficulty at the time. The defendant testified in his own behalf that he was in the store at Wolfe's Point, and Smith came there. "When he came in the store I said: `Look here, I understand you have been telling lies on me.' He said: `Explain yourself, sir.' I told him then that I understood he had been telling it around that I had told him that I had seduced a certain girl. I told him that was all a lie, and I would like to get him to straighten it up. He run at me, and said: `You little son of a bitch, I will break your neck.' He run at me, and I shot him." He further testified that Smith struck him on the right shoulder, bruising it considerably, and that this was about the time he shot him; that he aimed to shoot him about the shoulder, and that he shot without any intention of killing him; did not attempt to shoot him a second time; and that he shot him because he was not able to stand up and fight him. It was also shown that defendant was physically weak; that one of his legs had so perished away that it was of little use; and that his reputation was excellent as a peaceable citizen.

At the instance of the state, the court gave these instructions: "No. 1. If the jury believe from the evidence that the defendant, Louis Y. Musick, at the county of Moniteau, at any time within three years next before the finding of the indictment, feloniously, on purpose, and of his malice aforethought, did shoot at Andrew J. Smith with intent to kill the said Smith, the jury will find the defendant guilty, and assess the punishment at imprisonment in the penitentiary not less than two years and not exceeding ten years. No. 2. The court instructs the jury that the words `on purpose,' as used in these instructions, mean `intentionally,' not `accidentally.' The word `malice,' as used in the indictment, does not mean, in the legal sense, mere `spite,' or `ill will,' or `dislike,' as it is originally understood, but it means condition of mind which prompts one person to take the life of another without just cause or justification, and signifies that state of disposition which shows a heart regardless of social duty and fatally bent on mischief. `Aforethought' means `thought of beforehand' for any length of time, however short. No. 3. If the jury believe from the evidence that the defendant shot at A. J. Smith and aimed to shoot him in a vital part, the law presumes that he intended to kill him. No. 4. The jury are instructed that they are the sole judges of the credibility of the witnesses, and of the weight to be given to their evidence, and in this connection the jury are instructed that the defendant is a competent witness in his own behalf; but in determining the weight to be given to his evidence the jury may take into consideration the fact that he is the party on trial, and the interest he has in the result of the cause. No. 5. If the jury have a reasonable doubt of defendant's guilt they should acquit him, but a doubt, to authorize an acquittal, should be a substantial doubt touching defendant's guilt, and not a mere possibility of his innocence."

On behalf of the defendant, the court gave the following instructions: "No. 1. The jury are instructed that a probability of defendant's guilt, as charged in the indictment, is not sufficient to warrant a conviction; nor is it sufficient that the greater weight or preponderance of the evidence supports the allegations of the indictment; nor is it sufficient that upon the doctrine of chance it is more probable that the defendant is guilty. To warrant a conviction of the defendant he must be proved to be guilty so clearly and conclusively that there is no reasonable theory upon which he can be innocent when all the evidence in the case is considered together. No. 2. The jury are instructed that to constitute the right of defense the actual striking of a blow is not necessary, nor is it necessary that the assailant be in striking distance. No. 3. If the jury believe from the evidence that the defendant, Lewis Y. Musick, apprehended a design on the part of Andrew Smith to commit a felony on him, or to do some great personal injury, and that there was a reasonable cause to apprehend immediate danger of such design being carried out, and that he shot Smith to prevent the accomplishment of such design, then the shooting is justified upon the ground of self-defense, and you should acquit. It is not necessary to this defense that the danger should have been real and actual, or that the danger should have been impending and immediately about to fall. If you believe that the defendant had reasonable cause to believe these facts, and he shot under such circumstances as he believed to prevent such expected harm, then you should acquit." There was written on the margin of the said instruction the following, to-wit: "Given because not objected to." "No. 4. The court instructs the jury that, although they may believe from the evidence that the facts and circumstances proved and relied on to establish defendant's guilt are in doubt, or that the intent of the defendant to kill as charged in the indictment is in doubt, then, if the prisoner has by evidence satisfied you that h...