The State v. Nelson

• Decision Date: 21 November 1893
• Citation: 23 S.W. 1088,118 Mo. 124
• Parties: The State v. Nelson, Appellant
• Court: Missouri Supreme Court

23 S.W. 1088

118 Mo. 124

The State v. Nelson, Appellant

Supreme Court of Missouri, Second Division

November 21, 1893

Appeal from Lafayette Criminal Court. -- Hon. John E. Ryland, Judge.

Affirmed.

John Welborn for appellant.

The court below committed error in not giving the jury an instruction for common assault, whether asked or not, when the defendant's evidence was that he "shot to scare them and not to kill them." The trial court erred in refusing to grant a new trial, when its attention was called to the neglect to give an instruction for common assault in the motion for a new trial. State v. Banks, 73 Mo 592; State v. Murphy, 14 Mo.App. 73; State v Tate, 12 Mo.App. 327; State v. Branstetter, 65 Mo. 149; State v. Palmer, 88 Mo. 568.

R. F Walker, Attorney General, for the state.

(1) Defendant makes no complaint of any of the instructions given or refused upon the trial of this case, in his motion for a new trial. His only complaint is that the court failed to give the jury an appropriate instruction that they might convict the defendant of a common assault. Such an instruction would have been unauthorized and unwarranted by the testimony. State v. Maguire, 113 Mo. 670. Again, in order that such action of the court might be assigned as error, here it became necessary that the defendant should have asked an instruction of this kind. (2) We are again confronted with the declaration of a convicted defendant that the verdict is against the evidence; the testimony in this case is unusually strong, and the court having in his discretion submitted the question of defendant's guilt or innocence to the jury, and they having found defendant guilty, such action will not be reviewed here until appellant has shown clearly and affirmatively an abuse of that discretion. State v. Moxley, 115 Mo. 644; State v. Jackson, 106 Mo. 181.

OPINION

Burgess, J.

-- The defendant was, at the March term, 1893, of the criminal court of Lafayette county, convicted of an assault with intent to kill one Mecum Squires by shooting at him with a pistol, and his punishment fixed at imprisonment in the penitentiary for three years.

The state offered evidence tending to show that at the time of the shooting, which occurred at the town of Napoleon, Lafayette county, on the ninth day of December, 1892, that Mecum Squires was the city marshal of that town, and that he was informed that the defendant was carrying a pistol concealed, had been exhibiting it in a saloon, when as city marshal he attempted to arrest defendant, who ran, at the same time pulling a revolver out of his pocket and when ordered by the marshal to halt, instead of doing so turned and fired at him three or four times, hallooing at him, Mecum, to shoot his fire-cracker, at the same time firing two additional shots. Defendant admitted shooting at Squires four times but testified as a witness in his own behalf that he did not shoot until after the marshal had fired at him, and that he had no intention to kill, but simply fired his pistol at Mecum for the purpose of scaring him only. Squires was not hit by either one of the shots.

Defendant did not ask the court to instruct the jury as for common assault, but now insists, and did in his motion for a new trial, that it was the duty of the court to do so anyway. This is the only point insisted upon in this court for a reversal of the case.

Section 4208, Revised Statutes, 1889, makes it the duty of the trial court to instruct the jury in writing upon all questions of law arising in the case which are necessary for their information, whether asked to do so or not. This has been the uniform rule announced by this court. State v. Palmer, 88 Mo. 568; State v. Banks, 73 Mo. 592; State v. Maguire, 113 Mo. 670, 21 S.W. 212.

While the defendant testified that he shot at the marshal three or four times with a deadly weapon, he also testified that he had no intention to kill at the time, and shot merely to frighten him. The defendant had the right...