State v. McKenzie
| Citation | 15 S.W. 149,102 Mo. 620 |
| Parties | The State v. McKinzie et al., Appellants |
| Decision Date | 27 January 1891 |
| Court | United States State Supreme Court of Missouri |
Appeal from Randolph Circuit Court. -- Hon. J. A. Hockaday, Judge.
Reversed and remanded.
B. T Hardin for appellants.
(1) The verdict in this case is clearly against all the evidence in the case. While this court will not lightly interfere with the verdict of a jury, even in a criminal case, yet if a verdict is the result of passion or prejudice, rather than of evidence, this court will not sanction it. State v Packwood, 26 Mo. 340; State v. Brosius, 39 Mo 534; State v. Mansfield, 41 Mo. 470; State v. Daubert, 42 Mo. 239; State v. Burgdorf, 53 Mo. 65; State v. Jaeger, 66 Mo. 173; Robinson v. Musser, 78 Mo. 153; State v. Castor, 93 Mo. 252; State v. Primm, 98 Mo. 368. (2) The instructions given for the state are nearly all faulty. Number 1, at the last, is wrong for the reason tat there is not a word of testimony that defendant, Alexander McKinzie, was present "aiding and assisting in the act" of cutting Emery. The same objection is raised to instructions, numbered 2 and 3. Number 4 is faulty in not defining "heat of passion." The court should not have used this expression in an instruction without explaining its technical meaning. State v. Andrews, 76 Mo. 102. Number 5 is not the law. The law does not presume it to be murder in the second degree, "from the simple act of killing with a deadly weapon." The vice in that instruction caused the jury to convict of murder in the second degree. It is the intentional killing with a deadly weapon from which the law presumes murder in the second degree. To constitute that crime the killing must always be intentional. State v. Elliott, 98 Mo. 151; State v. Mitchell, 64 Mo. 191, and cases there cited. All the elements of murder in the first degree must exist, except deliberation. The instruction also is faulty in that there is no evidence that Alexander McKinzie did the stabbing. Number 6 is wholly wrong for the absolute want of evidence on which to base it. There is not a scintilla of testimony by any witness that the defendants "sought, brought on or voluntarily entered into a difficulty with the deceased." State v. Tabor, 95 Mo. 586; State v. Herrell, 97 Mo. 105; State v. Chambers, 87 Mo. 406. Number 7 is subject to the same criticism. There is not a particle of evidence that Alexander McKinzie "assaulted Emery with a cane," nor that defendant, John McKinzie, "took up the fight." Instructions although asserting correct principles of law, should not be given where there is no evidence on which to base them. They simply prejudice and mislead the jury. State v. Chambers, 87 Mo. 406. Number 8 has the same vice. There is absolutely no testimony in the case that defendants "provoked the difficulty or began a quarrel." Number 9 is faulty in connecting Alexander McKinzie with the stabbing when the evidence is that John McKinzie only did it, and he only could have had the intent. Number 10 is faulty in leaving out two elements of the crime charged, the will and the malice. (3) The court erred in refusing the admission of the records of the convictions of the deceased for assaults with intent to kill, they being offered for the purpose of establishing the dangerous character of the deceased. (4) The court erred in allowing the state's attorney, over the objections of defendants, to cross-examine them about matters not referred to in their direct testimony. State v. Patterson, 88 Mo. 88; State v. Palmer, 88 Mo. 568; State v. Bulla, 89 Mo. 595; State v. Taylor, 98 Mo. 244. (5) The court below should have instructed for manslaughter. It was the duty of the court to give all necessary instructions whether asked to do so or not. State v. Jones, 61 Mo. 232-236; State v. Branstetter, 65 Mo. 149; State v. Banks, 73 Mo. 592; State v. Robinson, 73 Mo. 306; State v. Palmer, 88 Mo. 568; State v. Barham, 82 Mo. 67; State v. Wensell, 98 Mo. 137. The evidence in the case shows that the defendants and deceased were perfectly friendly when they passed through the back door of the saloon. The killing was the result of a sudden quarrel. An instruction for manslaughter should have been given under the ruling in State v. Berkley, 92 Mo. 41. The defendant's testimony for the purpose of instructing the jury occupied the same footing as that of any other witness. State v. Palmer, 88 Mo. 568; State v. Anderson, 86 Mo. 310; State v. Banks, 73 Mo. 592. He testified that he "did not intend to kill" Emery. On that testimony he was entitled to an instruction for manslaughter. State v. Partlow, 90 Mo. 608; State v. Palmer, 88 Mo. 568; State v. Banks, 73 Mo. 592. The evidence is overwhelming that Emery used violence toward defendant. He assaulted defendant, cut his clothes off of him, and cut him to pieces. On that evidence the court below should have instructed for manslaughter (State v. Branstetter, 65 Mo. 149), and the failure to so instruct is a fatal error. State v. Robinson, 73 Mo. 306; State v. Banks, 73 Mo. 592. (6) For the reason that the evidence adduced at the trial does not show in what county the alleged offense was committed, the judgment must be reversed. State v. Meyer, 64 Mo. 190; State v. Miller, 71 Mo. 89; State v. Hughes, 71 Mo. 633; State v. McGrath, 73 Mo. 182; State v. McGinnis, 74 Mo. 245; State v. Hartnett, 75 Mo. 251; State v. Burgess, 75 Mo. 541; State v. Babb, 76 Mo. 501; State v. Hughes, 82 Mo. 86; State v. Young, 99 Mo. 284.
John M. Wood, Attorney General, for the State.
(1) The indictment properly charges the offense. State v. Dalton, 27 Mo. 14; State v. Blan, 69 Mo. 317; State v. Snell, 78 Mo. 240; State v. Ramsey, 82 Mo. 133. (2) It was competent to ask Alexander McKinzie on cross-examination "if he was not sitting in the saloon with his head on a cane," he having testified in chief that he did not have a cane the night of the killing. (3) As the defendants were not convicted of murder in the first degree, the correctness of instructions thereon becomes unimportant. State v. Wilson, 98 Mo. 440. (4) The second instruction for the state properly declared the law as to murder in the second degree and the presumptions arising from the use of a deadly weapon. State v. Wilson, 98 Mo. 440; State v. Stephens, 96 Mo. 637; State v. Tabor, 95 Mo. 585; State v. Landgraf, 95 Mo. 104; State v. Gee, 85 Mo. 645. (5) The third instruction properly declared the law as to murder in the second degree and the responsibility of an aider and abettor. State v. Miller, 100 Mo. 606; State v. Hollenscheit, 61 Mo. 302. (6) From the act of killing with a deadly weapon the law presumes murder in the second degree. State v. Tabor, 95 Mo. 585; State v. Gassert, 65 Mo. 352. (7) Under the evidence, the killing was either murder in the first or second degree or done in self-defense, and the court committed no error in requiring the jury to find the defendant guilty of either murder in the first or second degree, or to acquit him on the ground of self-defense. If the killing was committed under the circumstances shown by the state's witnesses, it was murder; if as testified to by defendants, it was done in self-defense. State v. Sneed, 91 Mo. 552; State v. Wilson, 88 Mo. 13; State v. Starr, 38 Mo. 272; State v. Anderson, 86 Mo. 309; S. C., 89 Mo. 312.
The defendants were tried in the Randolph circuit court at Moberly in June, 1890, for the killing of John Emery. They were both found guilty of murder of the second degree, John McKinzie being sentenced to the penitentiary for fifty-two years and Alexander McKinzie for ten, and the case is here on appeal. Defendants, through their counsel, contend that the court below erred in its instructions to the jury; in excluding competent and admitting incompetent evidence; in permitting the prosecuting attorney to cross-examine defendants as to matters not referred to by them in their examination in chief; in not granting a new trial on account of the separation of the jury; in not instructing the jury in regard to manslaughter, and in not granting a new trial because the venue was not proved.
I. Defendant's counsel contends that there was no evidence justifying the court in instructing the jurors that they might find defendant, Alexander McKinzie, guilty of the crime of murder of the first or second degree, as an aider and abettor of John McKinzie in the commission of the homicide; indeed, that all the evidence shows that he did not aid or abet John in the homicidal act. We do not think this contention sustained by the record. Thomas O'Brien testified that he saw the defendants and the deceased scuffling, and Mrs. Owens swore that the next morning after the homicide she heard Alexander McKinzie say that he and the deceased were contending about politics, and he had a cane in his hand and he tapped him with that and said: "I didn't have a son that couldn't lick him, even down to John." We think the testimony of O'Brien and Mrs. Owens, taken in connection with the relationship existing between defendants and the conceded fact that Alexander was present, justified the court in leaving it to the jury to say by their verdict whether he aided and abetted John in the homicide or not.
II. The court defined deliberation thus: Deliberation means in a cool state of the blood, and not in a heat of passion." The contention is that this definition does not go far enough and that it ought to have informed the jury what "a heat of passion" is. We think this point well taken. Deliberation, however, being an element of murder of the first degree only, and the defendants having been convicted of murder of the second degree this would not be reversible error, but, as the defendants can be tried again for murder of the first degree, it is important for us...
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