The State v. Evans
Decision Date | 21 May 1895 |
Citation | 31 S.W. 34,128 Mo. 406 |
Parties | The State v. Evans, Appellant |
Court | Missouri Supreme Court |
Appeal from Dunklin Circuit Court. -- Hon. John G. Wear, Judge.
The following is instruction number 2, given by the court of its own motion, referred to in the opinion:
Reversed and remanded.
Ely & Hawkins and J. P. Tribble for appellant.
(1) The indictment fails to state who was "cut, stabbed, thrust, etc." Such an averment was necessary. 10 Am. and Eng. Encyclopedia of Law, p. 566, sec. 6, note 1. It must be explicit and leave nothing to intendment. 10 Am. & Eng. Encyclopedia of Law, p. 567, sec. 6, notes 1, 2, 3; Phipps v. State, 85 Am. Dec. (Md.) 654; Comm. v. Dean, 109 Mass. 349. It must be certain as to the injured party. Harne v. State, 39 Md. 552. (2) Instruction number 2 given by the court of its own motion is error. First. It does not require the acts to have been committed on purpose or with malice aforethought. State v. Miller, 93 Mo. 263; State v. McNamara, 100 Mo. 100; State v. Gee, 85 Mo. 647. Second. It does not correctly define the right of self-defense, in that it utterly ignores -- in that part speaking with reference to defendant bringing on the difficulty -- the intention with which he entered into the affray. State v. Partlow, 90 Mo. 608; State v. Berkely, 92 Mo. 41; State v. Parker, 106 Mo. 217; State v. Culler, 82 Mo. 623 (p. 631, per Sherwood, J.); State v. Cable, 117 Mo. 380; State v. Gamble, 119 Mo. 427. He might have intended merely a common battery. He would not then be deprived of the right of self-defense. See citations to First, this paragraph. State v. Partlow, 90 Mo. 608; State v. Berkely, 92 Mo. 41; State v. Parker, 106 Mo. 217; State v. Cable, 117 Mo. 380; State v. Gamble, 119 Mo. 427; State v. Culler, 82 Mo. 623 (p. 631, per Sherwood, J., dissenting). Third. It invades the province of the jury in assuming that the defendant sought or brought on the difficulty by some willful act of his own. The fact of who brought on the difficulty was controverted. The weight of the testimony should have been left where it belonged -- to the jury. The court can not assume a controverted fact as having been proven, and single it out as the basis of an instruction. State v. Gann, 72 Mo. 374; State v. Wheeler, 79 Mo. 366; State v. Owen, 79 Mo. 619; State v. Kuhlman, 5 Mo.App. 588; State v. Tabor, 95 Mo. 585; Peck v. Richey, 66 Mo. 114; 11 Am. & Eng. Encyclopedia of Law, p. 254, sec. 5d and note 2. The testimony as to who brought on the difficulty was conflicting and the court had no right to give an instruction on self-defense with reference to who brought on the attack. State v. Tabor, 95 Mo. 585. No instruction should be given which assumes as a matter of fact that which is not conceded or established by incontrovertible proof. 11 Am. & Eng. Encyclopedia of Law, p. 255, sec. 5c, note 2; Ins. Co. v. Foley, 105 U.S. 350; Bank v. Hunt, 11 Wall. 391; Railroad v. Gladmon, 15 Wall. 401; Orleans v. Platt, 99 U.S. 616.
R. F. Walker, Attorney General, and Morton Jourdan, Assistant Attorney General, for the state.
(1) The indictment is sufficient. It charges the offense of which defendant was charged and stands convicted, closely following the language of the statute under which it is drawn. R. S 1889, sec. 3489. It was unnecessary to change the venue in the body of the indictment. It is charged in the caption and that is sufficient. State v. Beaucleigh, 92 Mo. 490; State v. Dawson, 90 Mo. 149. The return of the indictment into open court and its presentment by the grand jury is sufficiently shown, although there is, as a matter of fact, no record entry to that effect. State v. Lord, 118 Mo. 1. (2) The judgment in this cause will not be reversed because of the insufficiency of the evidence. Where the guilt of the defendant can be reasonably inferred from all the testimony, this court will not interfere with the finding of the jury. In this case the guilt of the defendant is clearly established by the testimony. State v. Cantlin, 118 Mo. 100. (3) The instructions in this case...
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