The State v. Moxley

Decision Date16 May 1893
Citation22 S.W. 575,115 Mo. 644
PartiesThe State v. Moxley, Appellant
CourtMissouri Supreme Court

Appeal from Chariton Circuit Court. -- Hon. G. D. Burgess, Judge.

The indictment charged the defendant with the murder of his wife by an act of violence which broke the cervical vertebrae thereby causing her death.

Another count charged the death to have been caused by strangling etc., etc. There were several counts which varied the method of charging the offense.

The homicidal act charged to be murder in the first degree is alleged to have occurred on the twelfth of October, 1885. On a former occasion this cause was here on defendant's appeal (102 Mo. 374), when the judgment was reversed because of the occurrence of several errors. Since then the cause has been retried on the theory announced as to the correct one by this court, both as to the reception of testimony and instructing the jury. The former trial resulted in a conviction of murder in the second degree, the punishment being assessed at twenty years in the penitentiary; the recent one in a conviction of a like grade of offense, the punishment being fixed at fourteen years.

At the close of the trial, the court, at the instance of the state gave the following instructions:

"1. The jury are instructed that if they believe from the evidence beyond a reasonable doubt that the defendant, Marion Moxley, on or about October 12, 1885, in Chariton county Missouri, wilfully, feloniously, premeditatedly and of his malice aforethought killed Mary Moxley in the manner and by the means specified in the indictment, then they must find him guilty of murder in the second degree, and will assess his punishment at imprisonment in the penitentiary for a term of not less than ten years.

"2. 'Wilfully' as used in these instructions means intentionally, not accidentally; 'malice aforethought' as used in the instructions in this case means wickedness of purpose previously formed, though it may not be formed but for a moment; 'premeditatedly' means thought of beforehand, for any length of time however short; by the term 'feloniously' is meant wickedly and unlawfully, from a depraved heart, or a mind which regards not social obligation but is fatally bent on mischief.

"3. The doubt which will authorize an acquittal of the defendant must be a real, substantial doubt, arising from the insufficiency of the evidence, and not a mere possibility that the defendant is innocent.

"4. If the jury find the defendant guilty of murder in the second degree, the verdict may be in the following form:

'State of Missouri v. 'Marion Moxley.]

'We the jury find the defendant guilty of murder in the second degree and assess his punishment at imprisonment in the penitentiary for a term of years.

' ,

'Foreman.'"

On behalf of the defendant the court then gave the jury the following instructions numbered 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10, to-wit:

"1. The court instructs the jury that the law presumes the defendant innocent in this case, and not guilty as charged in the indictment; and that you should act on this presumption and acquit the defendant unless the state by evidence satisfies you of his guilt beyond a reasonable doubt.

"2. The jury are instructed that the indictment in this case is of itself a mere formal accusation or charge against the defendant, and is not of itself any evidence of defendant's guilt; and no juror should permit himself to be to any extent influenced against the defendant because or on account of the indictment in the case.

"3. The prosecution seeks a conviction in this case upon circumstantial evidence alone. The court therefore instructs you that you cannot convict the defendant unless the state has proven his guilt from the evidence beyond a reasonable doubt, by facts and circumstances all of which are consistent with each other and with his guilt, and absolutely inconsistent with any reasonable theory of innocence.

"4. Unless the facts and circumstances as shown by the evidence point so clearly and conclusively to the defendant's guilt, that the death of Mary Moxley cannot be reasonably accounted for upon any other theory than that of his guilt, you must find defendant not guilty.

"5. The court instructs the jury that it devolves upon the state to show by the evidence to the satisfaction of the jury, beyond a reasonable doubt, every material fact necessary to constitute the crime with which the defendant stands charged; and if the jury have a reasonable doubt, arising from the insufficiency of the evidence, of the existence of any such material fact, the jury will acquit.

"6. Although the jury may believe from the evidence that defendant made statements to various persons concerning the manner or circumstances concerning the death of his wife, still, if such statements were made casually, in the course of ordinary conversations, they should be considered with great caution, because of the liability of witnesses to forget or misunderstand what was really said, or intended.

"7. The mere fact that deceased came suddenly to her death is not sufficient to warrant you in finding that death was the result of a criminal act. The prosecution has undertaken to prove that the death of Mary Moxley was caused by injuries inflicted upon her with force and violence by her husband; and unless such proof has been made to your satisfaction beyond a reasonable doubt, then you are bound to presume that Mrs. Moxley died from some other cause, no matter whether the evidence shows what that cause was or not.

"8. It is an admitted fact that Mary Moxley and this defendant were man and wife at the date of the death of said Mary Moxley; and if the jury find from the evidence in this case that defendant treated the said Mary Moxley kindly, this fact raises a presumption of innocence in his favor. This presumption is in addition to the ordinary presumption of innocence, and the state is required to overcome both of these presumptions and establish by evidence the guilt of defendant beyond a reasonable doubt, before you can find defendant guilty.

"9. The previous good character of the defendant, if proved to your satisfaction, is a fact in the case which you ought to consider together with all other facts in evidence in passing upon the question of his guilt or innocence of this charge, for the law presumes that a man whose character is good is less likely to commit a crime than one whose character is not good.

"10. If the jury find the defendant not guilty your verdict may be in the following form, namely:

'State of Missouri v. 'Marion Moxley.]

'We the jury find the defendant not guilty as charged. ' ,

'Foreman.'"

Defendant also asked the court to grant him the following instruction numbered 11, to-wit:

"11. The jury are instructed that in this case you will find the defendant guilty of murder in the first degree or acquit him," which last instruction the court refused to give.

The testimony adduced at the former trial is not materially variant from that presented in the present record, and will be adverted to hereafter.

Affirmed.

W. W Rucker, S. C. Major and Crawley & Son for appellant.

(1) The court erred in permitting the prosecuting attorney to elect to prosecute for murder in the second degree. The conclusion reached in State v. Talmage, 107 Mo. 543, is not supported by the Missouri authorities cited to sustain it. See Revised Statutes, 1889, secs. 3949, 4115; State v Lowe, 93 Mo. 547; State v. Keeland, 90 Mo. 337; State v. Nelson, 88 Mo. 126; State v. Wagner, 78 Mo. 644; State v. Burk, 89 Mo. 635. (2) It was error in the circuit court to compel defendant to accept and make his challenges from a panel containing but thirty men. "The defendant in every indictment for a criminal offense shall be entitled to a peremptory challenge of jurors, as follows: First, if the offense charged is punishable with death, or by imprisonment in the penitentiary not less than for life, to the number of twenty." Revised Statutes, 1889, sec. 4200. "There shall be summoned and returned in every criminal cause, a number of qualified jurors equal to the number of peremptory challenges and twelve in addition; and no party shall be required to make peremptory challenges before a panel of such number of competent jurors shall be obtained." Revised Statutes, 1889, sec. 4203. (3) There was no testimony offered on the part of the state sufficient to warrant the submission of the case to the jury; and defendant's instruction in the nature of a demurrer to the the evidence, ought, therefore, have been sustained. (4) Defendant's eleventh instruction should have been given. If...

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