State v. Spaugh

• Decision Date: 20 November 1906
• Citation: 199 Mo. 147,97 S.W. 901
• Parties: STATE v. SPAUGH.
• Court: Missouri Supreme Court

97 S.W. 901

199 Mo. 147

STATE v. SPAUGH.

Supreme Court of Missouri, Division No. 2.

November 20, 1906.

1. HOMICIDE—ASSAULT WITH INTENT TO KILL —INFORMATION.

An information substantially charging the offense described by Rev. St. 1899, § 1848, as an assault with intent to kill does not charge a crime unknown to the law, although it unnecessarily uses the words "on purpose and a deadly weapon" which are not contained in the statute where, by treating such words as surplusage, there will still remain a complete and sufficient description of the offense.

2. CRIMINAL LAW—EVIDENCE OF EXPERTS.

In prosecution for assault with intent to kill, a physician of over 15 years' standing who saw and dressed the wounds of the person assaulted, a few minutes after their infliction, was competent to testify that "knucks," when applied to the head and body, would be a deadly weapon.

3. HOMICIDE—EVIDENCE—CHARACTER OF DEFENDANT.

In a prosecution for assault with intent to kill, evidence that defendant had upon his person a pistol at the time of the assault, was admissible, as tending to show the character of the man, and that he was prepared for any emergency which might arise on such an occasion.

4. CRIMINAL LAW—VERDICT—EXCESSIVE PUNISHMENT.

A verdict, imposing a punishment of two years in the penitentiary on a conviction of assault with intent to kill, where the assault was wanton and malicious in a marked degree, was not excessive and cruel.

Appeal from Circuit Court, Iron County; E. M. Dearing, Judge.

Arthur Spaugh was convicted of assault with intent to kill, and he appeals. Affirmed.

C. P. Dameron, J. A. Abernathy, and Jerry B. Burks, for appellant. The Attorney General and N. T. Gentry, for the State.

BURGESS, P. J.

At the October term, 1904, of the circuit court of Iron county the defendant was convicted of an assault with intent to kill one Frank P. Ake, and his punishment fixed at two years' imprisonment in the penitentiary, under an information filed against him by the prosecuting attorney of said county. He appeals.

The facts are substantially that Ake was passing a livery stable in Ironton, on his way to the railroad depot in that town, when defendant, who was there, said to Ake that he could whip him. After some words between the parties, Ake went on to the depot, and, upon his return, he again passed the livery stable, in front of which the parties again met, and, after a few words passed between them of an unfriendly character, defendant...