State v. Cunningham

32 S.W. 970, 130 Mo. 507, 1895 Mo. LEXIS 411

Opinion

Burgess, J.

After having been indicted by a special grand jury in the circuit court of Audrain county, for assaulting with intent to kill, with malice aforethought, one Emma Hill, at sgid county, on the seventh day of December,1894, defendant was put upon his trial at the same term, convicted, and his punishment fixed at five years’ imprisonment in the state penitentiary. After an unsuccessful motion for a new trial he appealed.

Defendant’s first contention is that it does not appear from the record that the court was in session or open the day the indictment was returned. This, however, is not sustained by the record which contains the following entry: “And now at this day, January 22, 1895, comes the special grand jury heretofore impaneled, into this court, and, through their foreman, A. J. Douglass, returned into open court here the following indictment,” Then follows an entry of “State v. Cunningham, assault with intent to kill.” It thus clearly appears that court was in session when the indictment was returned, as the record expressly shows that the grand jury returned into open court, etc., which evidently means that the court was in session at that time.

The next contention is, that the grand jury that returned the indictment was a “special” grand jury, and had no authority to find the indictment in this case. There is no merit in this contention, nor has any reason been suggested in support of it.

It was finally argued that the court should have instructed the jury as to the credibility of the witnesses, and that its failure to do so is reversible error. A sufficient answer to this contention is that the evidence was substantially all one way, and showed defendant guilty, beyond any doubt, of a willful and malicious assault, for which there was not the slightest provocation. His trial was manifestly fair, and the judgment should be affirmed. It is so ordered.

All of this division concur.