Point II is denied. The Terrell court relied upon State v. Hacker, 214 S.W.2d 413, 415 (Mo. banc 1948), and State v. Goodman, 496 S.W.2d 850, 852 n. 1 (Mo. banc 1973), to support this conclusion. Terrell, 751 S.W.2d at 395.
Point II is denied. The Terrell court relied upon State v. Hacker, 214 S.W.2d 413, 415 (Mo. 1948), and State v. Goodman, 496 S.W.2d 850, 852 n.1 (Mo. 1973), to support this conclusion. Terrell, 751 S.W.3d at 395.
A variety of objects have been found to be dangerous instruments under the circumstances in which they were used. Without necessarily endorsing their conclusions, these cases include: State v. Goodman, 496 S.W.2d 850, 851 (Mo. banc 1973) (champagne bottle); State v. Carpenter, 72 S.W.3d 281, 284 (Mo. App. 2002) (handcuffs); Burch, 939 S.W.2d at 530 (elbow); State v. Tankins, 865 S.W.2d 848, 851-52 (Mo. App. 1993) (butter knife); State v. Terrell, 751 S.W.2d 394, 396 (Mo. App. 1988) (beer bottle); State v. Seagraves, 700 S.W.2d 95 (Mo. App. 1985) (metal bar approximately 13 inches long and 1 inch in diameter); State v. Davis, 611 S.W.2d 384, 386-87 (Mo. App. 1981) (metal sign nailed to a wooden board attached to a wooden stake). Williams relies on three court of appeals cases, State v. Pogue, 851 S.W.2d 702 (Mo. App. 1993); State v. Idlebird, 896 S.W.2d 656, 663 (Mo. App. 1995); and State v. Dowdy, 60 S.W.3d 639, 644 (Mo. App. 2001), to argue that the information and evidence were insufficient because there is no charge or evidence that he intended to use the vehicle to cause death or serious physical injury to Mosley.
See Thomas v. State, 524 P.2d 664 (Alaska 1974). See State v. Goodman, 496 S.W.2d 850 (Mo. 1973). The weapon utilized in the assault by appellant was a popular pocket knife which appears to be a "Buck knife."
Missouri courts have often held that seemingly innocuous items may be used as dangerous instruments. SeeState v. Idlebird, 896 S.W.2d 656, 663 (Mo.App. 1995) (fire); State v. Terrell, 751 S.W.2d 394, 396 (Mo.App. 1988) (beer bottle); State v. Davis, 611 S.W.2d 384, 386-87 (Mo.App. 1981) (metal sign nailed to a wooden board attached to a wooden stake); State v. Goodman, 496 S.W.2d 850, 851 (Mo. 1973) (champagne bottle); State v. Seagraves, 700 S.W.2d 95 (Mo.App. 1985) (metal bar approximately 13 inches long and 1 inch in diameter). Thus, whether an instrument, article, or substance qualifies as a "dangerous instrument" depends on "whether the instrument is readily capable of causing death, serious disfigurement, or protracted loss or impairment of a body part and whether any type of physical injury resulted."
State v. Anderson, 663 S.W.2d 412, 416 (Mo.App., S.D. 1983). Missouri courts have found beverage bottles to be "dangerous weapons" under previous statutes. See State v. Goodman, 496 S.W.2d 850, 852 n. 1 (Mo. 1973) (champagne bottle); State v. Hacker, 214 S.W.2d 413, 415 (Mo. 1948) (whiskey bottle). A beer bottle is ordinarily a harmless object, but when wielded as a bludgeon upon a human being it becomes a dangerous instrument capable of causing serious physical injury or death. Clearly, the State presented sufficient evidence to prove that the beer bottle became a dangerous instrument in the hands of defendant.
The circumstances and the very nature of the tire tool and its use justified that submission. State v. Goodman, 496 S.W.2d 850 (Mo. 1973); State v. Davis, 611 S.W.2d 384 (Mo.App. 1981); State v. Murphy, 610 S.W.2d 382 (Mo.App. 1980). The defendant's last point is denied and the judgment is affirmed.
The tree limb, as used here, was a deadly weapon. State v. Goodman, 496 S.W.2d 850 (Mo. 1973) [2]. The victim was struck with multiple blows, one or more of which caused her death, and was left to die.
Albeit the point is not properly presented for review on appeal we note that under ยง 556.061(7) the term "dangerous instrument" is defined to mean "any instrument, article or substance, which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury." Under previous statutes the following have been declared to be dangerous weapons: leather-sole shoes when used to kick a prone person [ State v. Brinkley, 354 Mo. 1051, 193 S.W.2d 49 (1946)], a rock [ State v. Lawson, 360 Mo. 95, 227 S.W.2d 642 (1950); State v. Shipley, 174 Mo. 512, 74 S.W. 612 (1903)], hoe handle [ State v. Thompson, 30 Mo. 470 (1860)], large stone [ State v. Leonard, 22 Mo. 449 (1856)], champagne bottle [ State v. Goodman, 496 S.W.2d 850 (Mo. 1973)] and whiskey bottle [ State v. Hacker, 214 S.W.2d 413 (Mo. 1948)]. The articles just enumerated, as well as a metal "no trespassing" sign nailed to a wooden board attached to a stake, are innoxious objects when in repose or employed for intended purposes.
Although defense witnesses indicated that the two were in harmony that evening and that both were drinking, no justifying, mitigating or excusing circumstances were set forth, and no evidence was presented by defendant to support an instruction on assault without malice. See State v. Surgeon, 456 S.W.2d 293 (Mo. 1970); State v. Crossman, 464 S.W.2d 36, 41 (Mo. 1971); State v. Goodman, 496 S.W.2d 850 (Mo. 1973). The court did not err in refusing to instruct on assault without malice.