State v. Alley , 68 Mo. 124 ( 1878 )

Henry, J.

The court, in giving instruction No. 1 for the State, and refusing Nos. 1 and 2 asked by defendant, entirely ignored the evidence as well that adduced by the State as by the defendant, as to the conduct of Wake-field toward defendant. The evidence showed that Wake-field, and other persons, were in a store when defendant entered, politely saluted the company, and walked up to the counter with a can, and asked the merchant for coal oil; that, when he entered, and after he had respectfully passed the ordinary salutation,Wakefieldremarked, “There is Oal. Alley,” applying to him at the same time an indecent epithet. Then advancing toward defendant, and when within three or four feet of him, leaning over toward him and throwing his hand back behind him, he again applied to him the same indecent epithet. Thereupon, the defendant drew his pistol and made the assault for which he was indicted. On this state of facts, it was not for the court to say that defendant had no reasonable cause to apprehend a design on the part of Wakefield to-do him some great bodily injury, and that he had no reasonable cause to apprehend immediate danger that such design would be carried into immediate execution. The jury should have been permitted to pass upon these questions, and it was manifest error in the court to refuse the instructions asked by defendant. '

All concurring,

the juugment is reversed and the cause remanded.

Reversed.