2 S.W. 394 (Mo. 1886), State v. Payton

Citation:2 S.W. 394, 90 Mo. 220
Opinion Judge:Black, J.
Party Name:The State v. Payton, Appellant
Attorney:Harrington, Hammond and J. M. Patterson for appellant. B. G. Boone, Attorney General, for the state.
Case Date:December 06, 1886
Court:Supreme Court of Missouri

Page 394

2 S.W. 394 (Mo. 1886)

90 Mo. 220

The State


Payton, Appellant

Supreme Court of Missouri

December 6, 1886

Appeal from Christian Circuit Court. -- Hon. W. F. Geiger, Judge.


Harrington, Hammond and J. M. Patterson for appellant.

(1) The record does not show that the indictment was returned by the foreman of the grand jury in the presence of the jury, as required by section 1797 of the Revised Statutes of 1879. (2) The indictment is absurd and inconsistent in this: that it charges that one mortal wound produced the death of the deceased, and that said mortal wound was given by both of the defendants with two different guns. (3) Defendant's motion for a new trial should have been sustained for the reason that the verdict was against the evidence. (4) The state did not prove any deliberation or premeditation on part of defendant, and the court committed a grievous error in giving the fourth instruction asked for the state. Deliberation and premeditation are material facts in murder in the first degree, and must be proved. State v. Foster, 61 Mo. 552, and authorities cited; State v. Mitchell, 64 Mo. 192; State v. Long, 64 Mo. 322. The sixth instruction should not have been given. The word "real," in the definition of reasonable doubt, has been condemned in State v. Owens, 79 Mo. 632. (5) As shown by affidavits, the jury was permitted to separate, which is urged as an error and as being contrary to section 1909 of the Revised Statutes of 1879. In case of State v. Collins, 81 Mo. 657, the question was considered fully and declared that such an error must reverse the cause. (6) If the testimony of the state is true, we have a case of murder in the second degree, and the court committed manifest error in not instructing the jury as to murder in the second degree. (7) Instructions numbered one, two, three, four and five, asked by defendant and refused, should have been given.

B. G. Boone, Attorney General, for the state.

(1) The record entry of the return of the indictment by the grand jury through their foreman, is in almost the identical language of the statute, and is not objectionable. R. S., sec. 1797. (2) The indictment correctly charges murder in the first degree, and is not subject to objection. 2 Hale's P. C. 173; 1 Bish. Crim. Proc. [2 Ed.] sec. 471; Whar. on Hom. [2 Ed.] sec. 338; 1 Whar. on Crim. Law, sec. 129; State v. Green, 13 Mo. 382; State v. Dalton, 27 Mo. 14; State v. Blan, 69 Mo. 317. (3) The defendant interposed no objections, at the time, to the admission or exclusion of any evidence, and he cannot now complain. State v. McDonald, 85 Mo. 539, and cases cited. (4) Malice, deliberation and premeditation are conditions of the mind which cannot be proved by express or positive evidence, but they may be deduced from all the facts and circumstances attending the killing. State v. Talbott, 73 Mo. 347, and cases cited; State v. Kotovsky, 74 Mo. 247; State v. Grant, 76 Mo. 247. (5) The use of the word "real," in the definition of a reasonable doubt, is not reversible error. The use of the word is a mere irregularity, and could not redound to defendant's injury. It is only where some positive rule of law has been violated, that may possibly prejudice defendant, that will justify a reversal. State v. Holme, 54 Mo. 160. The definition of reasonable doubt, as used in the case at bar, has, since the rendition of the opinion in State v. Owen, 79 Mo. 632, been approved by this court. State v. Jones, 86 Mo. 623...

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