The State v. Moxley
Decision Date | 16 May 1893 |
Citation | 22 S.W. 575,115 Mo. 644 |
Parties | The State v. Moxley, Appellant |
Court | Missouri 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:
'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.
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:
'State of Missouri v. 'Marion Moxley.]
Defendant also asked the court to grant him the following instruction numbered 11, to-wit:
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...
To continue reading
Request your trial