State v. Phelan

65 Mo. 547

• Court: Supreme Court of Missouri
• Decided: October 15, 1877
• Status: Published

Opinion

Norton, J.

The only point for consideration in this case is the sufficiency of the indictment. The indictment charges that defendant, on &c., at &c., “ wilfully, feloniously, on purpose, and of his malice aforethought, unlawfully did shoot at one Peter White, with a pistol, which said pistol was then and there a deadly weapon, and loaded and charged with gunpowder and leaden bullets, with intent then and there the said' Peter White wilfully, feloniously, on purpose and of his malice aforethought to kill and murder,” &e.

The indictment is framed under sec. 29, 1 Wag. Stat., 449, which provides “that every person who shall, on purpose and of malice aforethought, shoot at or stab another, or assault or beat back another with a deadly weapon, or by any other means likely to produce death or great bodily harm, with intent to kill,” &c., such person “ shall be punished by imprisonment in the penitentiary not exceeding ten yeai’s.”

The only objection urged against the indictment is that it does not allege an assault. We think that this objection is not well taken. The indictment follows not only the form as laid down in 2 Arch. Crim. Prac., sec. 14, but uses the language of the statute defining the offense. No exceptions were taken to the instructions, nor do we perceive any error, either in them or in the record of the case. The judgment will therefore be affirmed, in which the other judges concur. Areirmed.