State v. O'Harra

• Decision Date: 16 May 1887
• Citation: 4 S.W. 422,92 Mo. 59
• Parties: The State v. O'Hara, Appellant
• Court: Missouri Supreme Court

4 S.W. 422

92 Mo. 59

The State v. O'Hara, Appellant

Supreme Court of Missouri

May 16, 1887

Appeal from St. Louis Criminal Court. -- Hon. G. S. Van Wagoner Judge.

Reversed.

George Bullock for appellant.

(1) The court erred in not giving an instruction for murder in the second degree. State v. Hays, 23 Mo. 323; State v. Joeckel, 44 Mo. 234; State v. Hudson, 59 Mo 135; State v. Wieners, 66 Mo. 11; State v Phillips, 24 Mo. 475. (2) The defendant was entitled under his own evidence to an instruction for manslaughter in the third degree. State v. Branstetter, 65 Mo. 149; State v. Jones, 79 Mo. 441; State v. Starr, 38 Mo. 277; State v. Dieckman, 11 Mo.App. 538; affirmed, 75 Mo. 570; State v. Wilson, 85 Mo. 134; State v. Banks, 73 Mo. 592; State v. Murphy, 14 Mo.App. 73; State v. Cooper, 71 Mo. 436; State v. Tate, 12 Mo.App. 327. (3) The defendant was entitled under his own evidence to an instruction for manslaughter in the fourth degree. State v. Douglass, 81 Mo. 231; State v. Ellis, 74 Mo. 207; State v. Dieckman, 11 Mo.App. 538; affirmed, 75 Mo. 570; State v. Wilson, 85 Mo. 134; State v. Banks, 73 Mo. 592; State v. Murphy, 14 Mo.App. 73; State v. Cooper, 71 Mo. 436; State v. Tate, 12 Mo.App. 327. (4) The court erred in its definition of the word "wilfully." See cases cited supra. (5) The court erred in not defining "just cause of provocation" and "lawful provocation." State v. Branstetter, 65 Mo. 149; Dyer v. Brannock, 2 Mo.App. 432; Digby v. American Ins. Co., 3 Mo.App. 603; Young v. Ridenbaugh, 67 Mo. 574; State v. Lauri, 1 Mo.App. 371; State v. Andrew, 76 Mo. 101; State v. Ellis, 74 Mo. 207. (6) The court committed error in instruction number four in instructing the jury that "in this case there is no evidence tending to show the existence of any such passion, or of a just cause of provocation, or a lawful provocation." State v. Foley, 12 Mo.App. 431. (7) An erroneous instruction is not cured by a subsequent one which properly declares the law. State v. McNally, 87 Mo. 644; State v. Hill, 69 Mo. 451; State v. Dearing, 65 Mo. 530; State v. Mitchell, 64 Mo. 191; State v. Nauert, 2 Mo.App. 295. (8) The court should give proper instructions whether asked for or not. State v. Banks, 73 Mo. 592. To constitute murder in the first degree it is necessary that the killing should have been done feloniously, wilfully, deliberately, premeditatedly, and with malice aforethought; and if either of these elements is lacking, the homicide is not murder in the first degree.

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

(1) The evidence made a case of murder in the first degree. Where the evidence, including that given by a defendant, makes a case of murder in the first degree, it is not error in the trial court to refuse an instruction for murder in the second degree. State v. Jones, 79 Mo. ; State v. Collins, 81 Mo. 652; State v. Wilson, 88 Mo. 13. (2) The instructions given by the court properly declared the law, and have been repeatedly approved by the court. (3) Appellant complains of the definition of the word "wilfully." It is defined as "intentionally, and not by accident." This is sufficient. It was not necessary to define "a just or lawful provocation." This term is used in defining "deliberation," and this court has never required each particular word of a definition to be itself defined. It is only the technical words constituting the elements of the crime charged that are to be defined. State v. Snell, 78 Mo. 240; State v. Kotovsky, 74 Mo. 247; State v. Banks, 73 Mo. 592; State v. Wieners, 66 Mo. 13. Counsel for defence insist that the testimony of the accused entitled him to an instruction for murder in the second degree. In the Jones, Collins, and Wilson cases, above cited, the testimony of the defendants was much stronger than in the case at bar, but in each of these cases the court ruled that the evidence did not warrant an instruction for murder in the second degree.

OPINION

Black, J.

The defendant was indicted for killing Mary McColler by striking her with a beer glass. The trial resulted in a verdict of guilty of murder in the first degree.

From the evidence it appears that of three adjoining second-story rooms, all opening upon a veranda reached by a single flight of stairs communicating with a rear yard, the defendant and his wife occupied one; the deceased, her son and daughter occupied another; and a Mr. Smith and wife occupied the third. The defendant and the son of the deceased had been in the habit of drinking together, and on several occasions had created a disturbance by their boisterous conduct. The deceased complained to the defendant, and remonstrated against such actions. All this led to a quarrel between them; and it is shown that they were on unfriendly terms down to the tragedy in question, which occurred on a Sunday evening just after the lamps had been lighted. Mrs. Smith, who was on the veranda at the time, testified that defendant and his wife came out of their room. The defendant then directed his wife to go back to their room. It is claimed that he intended to go and collect some money due him. On the way down the stairs he turned around, and addressing himself to the deceased, who was sitting on the veranda in front of her room, said that his prayer was that the curse of the Almighty might rest upon her and that she would get paralyzed. She said something in a low voice which the witness did not understand. The defendant said, when at the bottom of the steps: "If I hear anything more from you, I'll come up there and fire you over the banisters." He then went back, caught the deceased by the waist, and attempted to execute his threat. In the struggle she got loose and ran to her room, threatening to call a policeman. The defendant followed, and, as he entered the door, seized a beer glass; she cried out: "Don't hit me with the glass." The witness did not see what transpired in the room, but it appears he hit her, driving pieces of glass into her head and breaking the skull and brain structure, from which she died in a few days.

Defendant, in his own behalf, testified that as he was going down the steps deceased said she hoped to God he would break his leg; that he replied in language which is substantially the same as that attributed to him by the other witness; that he thought she was in a fighting trim and he would go up and see if his door was locked. He says: "When I got up stairs Mrs. McColler was on the south side; she was in a fighting attitude, and I ran up to her and caught hold of her arms. We tussled and she jerked me towards her door -- she jerked away; that pulled me forwards towards her door, when she got a club in her hand;" that he then caught the glass and hurled it at her, not intending to kill her, and then went down the stairs. On the cross-examination, he says he went up the stairs to see if his door was locked and to tell his wife to keep it locked; that deceased came at him and he caught her by the wrists; that he did not follow her into the room, but she jerked and that pulled him in.

The court instructed as to murder in the first degree, justifiable homicide in self-defence, and manslaughter in the third and fourth degrees. The chief grounds of complaint are that the court failed to instruct upon murder in the second degree; and erred in its definition of "deliberately," which is as follows:

"That by the term deliberately is meant done in a cool state of the blood. It does not mean brooded over or reflected upon for a week, or a day, or an hour, but it does mean an intent to kill, executed by a person not under the influence of a violent passion suddenly aroused; and the passion here referred to is that and that only which is produced by what the law recognizes as a just cause of provocation, or a lawful provocation; and the court instructs the jury that in this case there is no evidence tending to show the existence of any such passion, or of a just cause of provocation, or of a lawful provocation."

It is the last clause only of this instruction to which objection is made. This instruction seems to be formulated after the one suggested in State v. Ellis, 74 Mo. 207; but it is there clearly stated that such an instruction may be given when there...