State v. Painter

• Decision Date: 31 October 1877
• Citation: 67 Mo. 84
• Parties: THE STATE v. PAINTER, Appellant.
• Court: Missouri Supreme Court

67 Mo. 84

THE STATE

v.PAINTER, Appellant.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Douglas Circuit Court.--HON. J. R. WOODSIDE, Judge.

F. S. Hefferman for appellant.

J. L. Smith, Attorney General, for the State.

HENRY, J.

At the October term, 1875, of the circuit court of Douglas county, the defendant was indicted for an assault with intent to kill. The indictment alleged that “John Painter and Elisha Painter, both late of the county of Douglas, at and in the county of Douglas, on or about the first day of August, 1875, feloniously, willfully, on purpose and of his malice aforethought, an assault did make upon one William Andrews, in the peace of the State then and there being with dangerous and deadly weapons towit: an axe and a gun being then and there deadly weapons in the hands of the said John Painter and Elisha Painter, then and there held, with the intent him, the said Andrews, then and there to kill and murder, contrary,” &c. At the October term, 1877, of said court, there was a trial of the cause, and defendant was found guilty and sentenced to the penitentiary for a term of two years. Motions for a new trial and in arrest of judgment were overruled, and defendant has prosecuted an appeal to this court.

1. ASSAULT TO KILL: sufficiency of indictment.

There is nothing in the objection to the indictment, that it does not allege that the offense was committed in Douglas county. It is clearly and explicitly alleged that the assault was made in that county. The objections, that it does not allege that the assault was made with malice, that it does not charge, that the defendant made an assault with deadly weapons likely to produce death, and that it does not show that an assault was committed, are equally groundless. The indictment was drawn on the 29th section, and the allegation that the axe and gun were deadly weapons, was sufficient without alleging that they were likely to produce death. That allegation is only necessary when other means than deadly weapons are employed in making the assault. The assault was specifically charged and alleged to have been made on purpose and of malice aforethought.

2. ____

The evidence on the part of the State was to the effect that William Andrews, on the 25th day of August, 1875, went to the blacksmith shop of defendant's father in Douglas county; that defendant was in the shop mending a shoe, and as soon as he had finished that work he went home a short distance from the shop and soon returned with a gun, and remarked to Andrews: “Bill Andrews, I am going to kill you, d--n your old soul.” The gun was then lying across his right arm, with the muzzle pointed towards Andrews' feet, the defendant's left hand being on the cock of the gun. His father immediately left the forge and caught hold of the gun, and forced the muzzle towards the ground; but this was after defendant had elevated the muzzle, so that the gun was pointed towards Andrews' body as high as his hips. The testimony for the defense was that of the defendant and his brother. The latter testified that defendant went to the house and returned with a gun, and said to Andrews: “Wm. Andrews, I heard you said my mother was a yellow-necked b--t--h, and that I was a horse thief; if you said so, we can settle it, if not, you can say so, and I have nothing against you.” Andrews said, “I never said it.” Defendant then said, “it is all right;” that defendant did not try to shoot Andrews, or say anything about shooting or killing him. Defendant's testimony was substantially the same, with the addition that he said he got the gun to make Andrews retract what he had said, and to prevent being hurt, if Andrews had weapons. We are satisfied that from this evidence the jury was warranted in finding an assault made by the defendant. The authorities cited by the Attorney General are conclusive, that if the testimony for the State was credited by the jury, it proved an assault. Bloomer v. State, 3 Sneed (Tenn.) 66; State v. Morgan, 3 Iredell 186; U. S. v. Myers, 1 Cranch C. C. 310; U. S. v. Richardson, 5 Cranch C. C. 348; Beach v. Hancock, 7 Foster (N. H.) 223.

The court, for the State, gave the following instructions: The first was substantially, that if Painter assaulted Andrews with a gun, as charged in the indictment, on purpose and of malice aforethought, with intent to kill him, they should find him guilty. 2. The court instructs the jury that an assault with intent to kill may be made, although there is no striking or shooting. 3. The court instructs the jury that the fact that the defendant and prosecuting witness were on friendly terms immediately after the difficulty sworn to by the witnesses, and have remained so ever since, is no evidence of the innocence of the defendant, but if they believe from the evidence that, at the time the assault was made, the defendant intended to kill said Andrews, they should convict. 4. The court declares the law to be, that the intent of the defendant to...