State v. Tetrick

• Decision Date: 20 November 1906
• Citation: 199 Mo. 100,97 S.W. 564
• Parties: STATE v. TETRICK.
• Court: Missouri Supreme Court

97 S.W. 564

199 Mo. 100

STATE v. TETRICK.

Supreme Court of Missouri. Division No. 2.

November 20, 1906.

1. CRIMINAL LAW — APPEAL — REVIEW — MOTION FOR NEW TRIAL.

Where, on motion for new trial in a criminal case, there is no objection made to the admission or exclusion of evidence, such matters need not be considered on appeal.

2. HOMICIDE—ASSAULT WITH INTENT TO KILL —DEGREES—MALICE AFORETHOUGHT.

The higher and lower grades of assault with intent to kill, warranting different punishments, are distinguished by the presence or absence of malice aforethought.

3. SAME—MALICE—DEFINITION.

The "malice" which distinguishes the higher from the lower grades of assault with intent to kill signifies the disposition which would prompt one person to take the life of another or do such other great bodily harm, without just cause or excuse.

4. SAME—MALICE AFORETHOUGHT.

"Aforethought" as used in the term "malice aforethought" distinguishing the higher from the lower grades of assault with intent to kill, means thought of beforehand for any length of time, however short.

5. SAME—ASSAULT—ACTUAL STRIKING.

To constitute the assault involved in assault with intent to kill, it is sufficient that the weapon is raised while in striking distance and an attempt made to strike, which is prevented by another.

6. SAME—EVIDENCE—SUFFICIENCY.

In a prosecution for assault with intent to kill, evidence of an unprovoked assault with a rock held sufficient to support a conviction, though defendant's testimony showed a minor assault in self-defense.

Appeal from Circuit Court, Ozark County; Argus Cox, Judge.

Frank Tetrick was convicted of assault with intent to kill, and appeals. Affirmed.

This cause is brought here upon appeal from a judgment of the circuit court of Ozark county, convicting the defendant of an assault with intent to kill. On December 26, 1903, the prosecuting attorney of Ozark county filed an information, under oath, charging the defendant with an assault with intent to kill one Sarah Combes. The date of the alleged defense was September 22, 1903, and a heavy stone was the deadly weapon charged to have been used. On defendant's application, a change of venue was awarded him on account of the prejudice of the judge, and Hon. Argus Cox was called in to try the case. Defendant was put upon his trial at the July term, 1905, of the Ozark county circuit court. The sufficiency of the information is nowhere challenged either in the motion for new trial, or by a timely motion in arrest of judgment, hence there is no necessity for reproducing it in the statement of the case. Upon the trial the record discloses that the testimony of the state tended to prove the following state of facts: That Mrs. Combes lived with her husband and four children on a farm near the town of Dora in Ozark county, and the defendant lived on another farm near there. On the date of the alleged offense, Mrs. Combes was in her house and called to one of her little girls, who was in Mrs. Combes' meadow. Defendant was also in this meadow; and, when Mrs. Combes would call the little girl, defendant would call back: "Go to hell." Defendant then came towards Mrs. Combes' barn lot, and repeated the above expression when Mrs. Combes called her son. Mrs. Combes then ordered defendant off her place; but defendant said that he would go across her place whenever he pleased, and go wherever he pleased. The second time Mrs. Combes ordered defendant to leave, and he replied with an oath and got over the fence into the public road. In a moment, defendant climbed back over the fence, saying he would kill Mrs. Combes and stamp her in the ground. He also used profane and vulgar language. When he was in the road, defendant picked up a rock; and carried this rock in his right hand, and tried to strike Mrs. Combes on the head. Just at that time, Mrs. Combes' son ran up, pushed defendant back, and prevented him from hitting Mrs. Combes with the rock; but defendant did strike her on the head twice with his fists. The testimony on the part of the defendant substantially tended to prove that some days prior...