State v. Venable

• Decision Date: 25 May 1915
• Docket Number: No. 18693.,18693.
• Parties: STATE v. VENABLE.
• Court: Missouri Supreme Court

177 S.W. 308

STATE v. VENABLE.

No. 18693.

Supreme Court of Missouri, Division No. 2.

May 25, 1915.

Appeal from Circuit Court, Ripley County; J. P. Foard, Judge.

Richard Venable was convicted of assault with intent to kill, and he appeals. Reversed and remanded.

Convicted of an assault with intent to kill and sentenced to two years in the penitentiary, the defendant has appealed.

The body of the information is as follows:

"Now at this time comes Charles L. Ferguson, prosecuting attorney, within and for the county of Ripley and state of Missouri, and under his oath of office and upon his information and belief, informs the court that one, Richard Venable, of the county aforesaid, at and in the county of Ripley and state of Missouri aforesaid, on or about the twenty-third day of December, A. D. 1913, in and upon the body of one, W. H. Henderson, then and there being, feloniously, on purpose, and of his malice aforethought, did make an assault, and the said Richard Venable then and there feloniously and on purpose, and of his malice aforethought a certain dangerous and deadly weapon, to wit, a shotgun, then and there loaded with gunpowder and leaden balls, which he, the said Richard Venable, in both his hands then and there had and held, at and upon and against him the said W. H. Henderson then and there willfully, feloniously on purpose, and of his malice aforethought did shoot off and discharge, and with the shotgun aforesaid and the gunpowder and leaden balls aforesaid then and there and thereby giving to the said W. H. Henderson in and upon the left side of the head and face of him, the said W. H. Henderson, one wound, with intent the said W. H. Henderson feloniously on purpose and of his malice aforethought to kill and murder, against the peace and dignity of the state of Missouri."

On December, 23, 1913, W. H. Henderson was clearing in his "new ground," when the defendant, accompanied by his little boy, came to where he was at work. Defendant had a gun loaded with BB shot. At the trial he testified he was hunting for turkeys. Henderson was at work with a mattock. After greeting each other, defendant asked Henderson whether he had said that defendant's wife was a liar. Henderson denied having made such a statement. He testified at the trial that defendant attempted to shoot him, and that he struck at the gun to prevent being shot. The defendant testified that Henderson attacked and struck at him with the mattock and that he shot Henderson to avoid being hit by the mattock. Two shots were fired. One shot glanced along the face from front to the neck barely missing the jugular vein, and inflicting a wound from which Henderson was disabled about seven weeks. The other shot did not take effect. Henderson ran to his home from the place of the shooting. Defendant disappeared until the following March, when he surrendered to the sheriff.

Defendant testified that he threw the shells from his gun at the place of shooting. A witness testified that he picked up two shells at the place where he found the mattock, Henderson's hat, and the beginning of the bloody trail. Those two shells were put in evidence over defendant's objection that it had not been shown that they were the shells used by defendant.

Defendant asked an instruction that thy defendant could not be convicted of anything more than a common assault, which was refused.

Among the instructions given were the following:

"No. 2. The court instructs the jury that the words `on purpose' and `of his malice aforethought' mean the intentional doing of a wrongful act without just cause or excuse.

"No. 3. The court instructs the jury...