22 S.W. 378 (Mo. 1893), The State v. Umble

Citation:22 S.W. 378, 115 Mo. 452
Opinion Judge:Gantt, P. J.
Party Name:The State v. Umble, Appellant
Attorney:R. H. Maybury and H. Q. Bridges, for appellant. R. F. Walker, Attorney General, and M. K. Brown, Prosecuting Attorney, for the state.
Judge Panel:Gantt, P. J. Judges Burgess and Sherwood concur.
Case Date:May 02, 1893
Court:Supreme Court of Missouri
 
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Page 378

22 S.W. 378 (Mo. 1893)

115 Mo. 452

The State

v.

Umble, Appellant

Supreme Court of Missouri, Second Division

May 2, 1893

Appeal from Jackson Circuit Court. -- Hon. H. P. White, Judge.

Affirmed.

R. H. Maybury and H. Q. Bridges, for appellant.

(1) The court erred in not instructing the jury upon murder of the second degree. "From the simple act of an (intentional) killing, the law presumes murder of the second degree. If the homicide was intentional, but not premeditated and deliberate, nor within any of the grades of manslaughter, or justifiable or excusable, it was murder of the second degree." State v. Hudson, 59 Mo. 137; State v. Mathews, 20 Mo. 50; State v. Branstetter, 65 Mo. 155; State v. Gassert, 65 Mo. 354; State v. McKinzie, 102 Mo. 628. (2) The court erred in not instructing the jury upon manslaughter of the fourth degree. If defendant acted without malice and in a heat of passion and not in self defense she was guilty of manslaughter of the fourth degree, even though she willfully killed the deceased. Revised Statutes, 1889, sec. 3477; State v. Edwards, 70 Mo. 480; State v. Curtis, 70 Mo. 600; State v. Watson, 95 Mo. 411; State v. McKinzie, 102 Mo. 632. (3) It was the duty of the court to have instructed the jury upon murder of the second degree and manslaughter of the fourth degree, whether requested to do so or not. State v. Branstetter, 65 Mo. 155; State v. Palmer, 88 Mo. 568; State v. Ware, 62 Mo. 597; State v. Mathews, 20 Mo. 50; State v. Dunn, 80 Mo. 689; State v. Johnson, 76 Mo. 122. (4) The court erred in not instructing the jury upon murder of second degree and manslaughter of fourth degree, because the homicide was committed while resisting an assault. "If the killing was intentionally done while resisting an assault by the deceased, if not justifiable or excusable, it was murder of the second degree or manslaughter of fourth degree." State v. Starr, 38 Mo. 277, and authorities supra under points 1, 2, 3. (5) In determining what instructions are to be given, the testimony of the defendant must be considered the same as that of any other witness, though her testimony be at variance with that of every other witness in the case. State v. Banks, 73 Mo. 596. (6) The court erred in permitting the witness, William Jackson, to testify over the defendant's objection, because said witness was then under indictment as an accessory after the fact to the same crime charged against the defendant, and was in law an accomplice. "The term accomplice includes * * * all particeps criminis, whether principals in first or second degree, or merely as accessories before or after the fact." Bouvier's Law Dictionary, 83, Title Accomplice. (7) The court erred in refusing defendant's instruction on the weight to be given to and the corroboration necessary to the testimony of the witness William Jackson, as an accomplice to the killing. State v. Walker, 98 Mo. 96; State v. Chiagk, 92 Mo. 395, 407. (8) The court erred in permitting witnesses Anna Carow and Fannie Jackson to testify as to the alleged dying declarations of deceased, Effie Jackson, and in permitting such alleged declarations to go to the jury as the dying declarations of deceased; because it did not sufficiently appear that deceased had then given up all hope and was under a well-founded apprehension of impending or immediate dissolution. State v. Simon, 50 Mo. 370; State v. Vansant, 80 Mo. 67; State v. Wensell, 98 Mo. 137; State v. Chambers, 87 Mo. 408.

R. F. Walker, Attorney General, and M. K. Brown, Prosecuting Attorney, for the state.

(1) Where the evidence all tends to prove one offense, it is error to mislead the jury by giving instructions in reference to a different one. State v. Starr, 38 Mo. 272; State v. Johnson, 76 Mo. 122; State v. Wilson, 88 Mo. 13; State v. Turlington, 102 Mo. 662. (2) The evidence for the state showed express malice, and proved murder in the first degree. State v. Jones, 79 Mo. 442; State v. Wilson, 88 Mo. 13; State v. Bulling, 105 Mo. 220. (3) The instruction of the trial court, that there was no evidence of provocation or passion, necessary to eliminate the element of deliberation, was right. State v. Ellis, 74 Mo. 219; State v. O'Hara, 92 Mo. 64; State v. Edwards, 70 Mo. 483; State v. Johnson, 76 Mo. 127; State v. Sneed, 91 Mo. 559; State v. Blunt, 91 Mo. 503. (4) Defendant's contention that instructions should have been given on murder in the second degree is necessarily wrong. "Murder in the second degree is such a homicide as would have been murder in the first degree if committed deliberately." State v. Wieners, 66 Mo. 20. The distinction between that provocation which, if homicide be committed under a passion, resulting therefrom, makes the homicide murder in the second degree, and that which makes it manslaughter, renders it impossible for this to be murder in the second degree. State v. Starr, 38 Mo. 272; State v. Curtis, 70 Mo. 599; State v. Ellis, 74 Mo. 219; State v. Thomas, 78 Mo. 338; State v. Bulling, 105 Mo. 221. (5) No evidence in this case tended to make the crime manslaughter in the fourth degree. There was no involuntary killing to bring the homicide within the purview of section 3476, Revised Statutes, 1889. A deadly weapon was intentionally used upon a vital part of the deceased. State v. McKinzie, 102 Mo. 621. Defendant...

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