3 S.W. 397 (Mo. 1887), State v. Murray

Citation:3 S.W. 397, 91 Mo. 95
Opinion Judge:Sherwood, J.
Party Name:The State v. Murray, Appellant
Attorney:Henry R. Watson for appellant. B. G. Boone, Attorney General, for the state.
Judge Panel:Sherwood, J. Norton, C. J., dissents as to paragraph four of the opinion, and Ray, J., does the like. Black and Brace, JJ., concur.
Case Date:February 14, 1887
Court:Supreme Court of Missouri

Page 397

3 S.W. 397 (Mo. 1887)

91 Mo. 95

The State


Murray, Appellant

Supreme Court of Missouri

February 14, 1887

Appeal from St. Louis County Circuit Court. -- Hon. W. W. Edwards, Judge.

The court gave the following instruction on its own motion:

"The indictment in this case alleges the crime of murder in the first degree against the prisoner, Nickolas Murray, and the jurors are instructed, that, before there can be a conviction, it must be proven, beyond a reasonable doubt, that, at the state of Missouri, and county of St. Louis, and prior to the finding of the indictment, the prisoner, Nickolas Murray, feloniously, wilfully, deliberately, and premeditatedly, and with malice, assaulted and killed one John Prince (the person alleged by the indictment to have been killed and murdered), intending then and there to kill him, the said John Prince, in some of the modes and by some of the means specified, defined, and described by the indictment. The words here used to define the crime of murder in the first degree are explained as follows: Feloniously means unlawfully, that is, without legal excuse or justification. Wilfully means done on purpose and not accidentally; premeditatedly means thought of before-hand and intended for any length of time, no matter how short, before the doing of the act; deliberately means the commission of an act in a cool state of the blood; that is, not in a heated state of blood caused by lawful provocation. And malice means that state of heart or mind void of all social duty, and fatally bent on mischief."

Reversed and remanded.

Henry R. Watson for appellant.

(1) The first instruction given by the court on its own motion is manifestly erroneous in omitting the phrase, "malice aforethought." (2) It is a fatal error to use only the term, malice, and omit the term, aforethought, in an instruction for murder in the first degree. State v. Curtis, 70 Mo. 508; State v. Wieners, 66 Mo. 13; 1 Bish. Crim. Law, sec. 439. The instruction is vague, indefinite, and uncertain. (3) It is the duty of the court in criminal cases to instruct the jury on all of the evidence in the case, and it erred in not giving an instruction on the question of an alibi. (4) The motion for new trial should have been sustained on the ground of newly discovered evidence. State v. Curtis, 77 Mo. 267. (5) The court erred in refusing to grant defendant a new trial on the ground of the misconduct of the sheriff in permitting the jury to separate during the trial. R. S., sec. 1909; State v. Collins, 81 Mo. 652.

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

(1) Appellant saved no exceptions to the action of the trial court in admitting and excluding testimony, and he will not be heard to complain here. (2) The term, malice aforethought, means with malice and premeditation, and if the latter words are properly defined, a definition of the term, malice aforethought, is not necessary. State v. Curtis, 70 Mo. 598, and cases cited. These terms were properly defined in this case. The deflnition of the term, deliberately, was technically erroneous, but, as there was no evidence of any provocation whatever, the error is harmless. State v. Wisdom, 84 Mo. 177. (3) Unless it clearly appears from the record that the jurors have been tampered with, or that they have been guilty of some improper conduct, the separation of the jury will not vitiate the verdict. State v. Carlisle, 57 Mo. 102; State v. Bell, 70 Mo. 633; State v. Collins, 86 Mo. 245. (4) The trial court committed no error in refusing to compel the prosecutor to elect on which count...

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