State v. Mitchell

170 Mo. 633, 71 S.W. 175 (1902)



Every person who shall attempt to commit an offense prohibited by law, and in such an attempt shall do any act towards the commission of such offense, but shall fail in the perpetration thereof, or be intercepted or prevented from executing the same shall be punished as provided in Mo. Rev. Stat. § 2360 (1899). Murder is an offense prohibited.


Defendant was a boarder in the victim's home and was a long-time friend. Evidence was presented that defendant pined for the victim's wife and made statements to the effect that they should be together. Defendant made other statements about getting the victim out of the way. Defendant and an accomplice were seen near the victim's home shortly before the incident. After the victim had retired, a pistol was fired immediately at his house, and, in 5 or 10 minutes, a second discharge of the pistol occurred. The bullet from one went into the pillow in the lower room, and the other hit the corner of the dresser. The circuit court convicted the defendant of attempted murder and sentenced him to five years in a penitentiary. The case was appealed to the Supreme Court of Missouri.


Was the conviction of attempted murder proper?




The court affirmed defendant's conviction because the evidence clearly showed that he attempted to assassinate the victim. The fact that the victim was not hit did not make it any the less an attempt to murder. Pursuant to Mo. Rev. Stat. § 2360 (1899), defendant's sentence could range from imprisonment in the penitentiary for a term of not less than two nor exceeding 15 years. The trial court correctly instructed as to the punishment that if the jury found that defendant premeditatedly attempted to kill the victim, then they could assess his punishment under § 2360.

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