State v. Raper

• Citation: 141 Mo. 327,42 S.W. 935
• Parties: STATE v. RAPER.
• Decision Date: 09 November 1897
• Court: United States State Supreme Court of Missouri

42 S.W. 935

141 Mo. 327

STATE v. RAPER.

Supreme Court of Missouri, Division No. 2.

November 9, 1897.

ASSAULT WITH INTENT TO KILL — EVIDENCE — RES GESTÆ — PROTECTING HOME.

1. On prosecution for assault on L. with intent to kill, evidence that defendant entered the residence of L., where a party was in progress, cursing B., whereupon L. ordered him from the house, following which was the assault, is admissible as showing the animus of defendant in entering the house, and raising a disturbance, armed, or apparently armed, with a deadly weapon.

2. Evidence of such entry is also admissible as part of the res gestæ, serving to elucidate the whole.

3. The owner of a dwelling has a right to protect it against a peace-disturbing, profane intruder, even, if necessary, to the taking of life, and therefore has a right to draw his knife, and hold it in his hand, ready for use, as he goes towards the intruder, and orders him from the house.

Appeal from circuit court, Dent county; James F. Green, Judge.

Jesse Raper was convicted of assault with intent to kill, and appeals. Affirmed.

Edward C. Crow, Atty. Gen., for the State.

SHERWOOD, J.

The defendant was indicted for an assault with malice aforethought upon one James Long, with a deadly and dangerous weapon, to wit, a large, heavy, glass bottle, and for striking, beating, and wounding him with the same, with intent to kill and murder. The indictment is founded upon section 3489, Rev. St. 1889. The jury found defendant guilty of an assault with intent to kill, but without malice, and assessed his punishment at two years in the penitentiary. The evidence, although there was some conflict, was amply sufficient to support the verdict, and the instructions were all that the evidence required for the information of the jury. There was no error in admitting testimony of defendant going into the house where there was a "play party" in progress, and cursing Barlow. There are several reasons why the admission of such evidence was not erroneous: First. Because it had a tendency to show the quo animo on the part of defendant in going into a private house, and a peaceful assemblage of young people, and raising a disturbance, armed, or apparently armed, with a deadly weapon. Second. The evidence offered was a part of the transaction and of the res gestæ, and served to elucidate the whole. State v. Kennade, 121 Mo. loc. cit. 413, 26 S. W. 347, and cases cited. Without this evidence, Long, who was altogether in the...