5 S.W. 889 (Mo. 1887), State v. Lowe

Citation:5 S.W. 889, 93 Mo. 547
Opinion Judge:Sherwood, J.
Party Name:The State v. Lowe, Appellant
Attorney:Blair & Marchand for appellant. B. G. Boone, Attorney General, for the state.
Case Date:November 28, 1887
Court:Supreme Court of Missouri
 
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Page 889

5 S.W. 889 (Mo. 1887)

93 Mo. 547

The State

v.

Lowe, Appellant

Supreme Court of Missouri

November 28, 1887

Appeal from Lewis Circuit Court. -- Hon. Ben. E. Turner, Judge.

The court gave the following instructions, asked by the state:

"1. The jury are instructed that if they believe, from the evidence, that the defendant, in Lewis county, on the thirty-first day of December, A. D., 1881, wilfully, premeditatedly, and of his malice aforethought, killed Andy Roan, in the manner and by the means specified in the indictment, they will find him guilty of murder in the second degree, and assess his punishment at not less than ten years in the state penitentiary. Wilfully, as here used, means intentionally; malice aforethought, as here used, means a 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."

"2. The opinions on questions of insanity which have been given by the medical experts, are testimony before you, but are subject to the same rules of credit or discredit as the testimony of other witnesses, and are not conclusive on the jury. The opinions neither establish nor tend to establish the truth of the facts upon which they are based; whether the matters testified to by the witnesses in the cause as facts are true or false is to be determined by the jury alone."

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

"4. Before the jury can acquit the defendant on the ground of his insanity they must be satisfied, from the evidence, that, at the time of the shooting of the said Andy Roan, the defendant's mental faculties must have been so perverted and deranged as to render him incapable of distinguishing between right and wrong, and of knowing the right from the wrong of that particular act."

"5. Although the jury may believe, from the evidence in the cause, that, at the time defendant shot Andrew Roan, he was unconscious of the nature of the act, yet if the jury shall further believe, from the evidence in the cause, that such unconsciousness was the immediate result of alcoholic liquors, or liquor voluntarily drank by the defendant, then such unconsciousness affords neither justification, palliation, nor excuse for the shooting by defendant of said Andy Roan; and if you shall believe, from the evidence in the cause, that defendant, under such circumstances, and by the means and in the manner charged in the indictment, shot and killed Andy Roan, then the jury should find the defendant guilty of murder in the second degree and assess his punishment in the penitentiary at not less than ten years."

"6. The law presumes every man is sane, until the contrary is established by the evidence to the satisfaction of the jury, and when insanity in any form is set up as a defence, it is a fact which must be proved like any other fact. The burden of proving such insanity is upon the defendant, and he is not entitled to the benefit of a mere doubt whether he was or was not insane."

"7. If the jury shall believe, from the evidence in the cause, that, from the year 1862 up to the time of the killing of the deceased, Andrew Roan, the defendant was for certain periods insane, and for certain other periods sane, then before the jury can acquit the defendant they must be satisfied, from the evidence in the cause, that defendant was insane at the time of the killing, and the burden of establishing such insanity rests upon the defendant."

The following instructions were given by the court of its own motion:

"1. If the jury acquit the defendant on the sole ground that he (the defendant) was insane at the time of the commission of the offence charged in the indictment the fact shall be so found in their verdict, and the jury are instructed further, that, in the event they find that the defendant was insane at the time of the commission of the offence, they will further find whether or not the defendant has or has not entirely and permanently recovered from such insanity."

"2. If the jury acquit the defendant on the sole ground that he was insane at the time of the commission of the offence charged, and they further find that he has entirely and permanently recovered, their verdict may be in the following form: We the jury find the defendant not guilty on the sole ground that he was insane at the time of the commission of the alleged offence, and that he has entirely and permanently recovered."

"3. If the jury acquit the defendant on the sole ground that he was insane at the time of the commission of the alleged offence, and find that he has not wholly and permanently recovered, their verdict may be in the following form: We the jury find the defendant not guilty on the sole ground that he was insane at the time of the commission of the alleged offence, and we further find that he has not wholly and permanently recovered."

The following instructions were given by the court at defendant's request:

"1. The law presumes the defendant innocent of the crime charged against him until he is proven guilty."

"2. The fact that an indictment was found by the grand jury against defendant, or the indictment itself, cannot be considered by the jury in making their verdict."

"3. The fact that the defendant did not testify in the case cannot be used to his prejudice, nor be considered by the jury in making their verdict."

"4. If the jury shall believe, from the evidence in the cause, that, at the time defendant shot the negro, he was insane or of unsound mind, and that he was not conscious of what he was doing when he fired his pistol at the negro; that he did not know the nature of the act he was about to commit when he fired the pistol; that he did not know the act was criminal; that he did not know that, by doing the act, he was subjecting himself to punishment; that he did not know right from wrong; that he did not possess capacity at the time sufficient to form a criminal intent and purpose; or that he was impelled by some insane impulse, and that either his reason or mental powers were so deficient that he could not restrain from doing the act with which he is charged, then they should find defendant not guilty."

"5. If the jury shall believe, from the evidence, that defendant was only partially insane at the time he shot the negro, and shall further believe that, at the time he did the act, his mind was in such a condition that he was not capable of distinguishing between right and wrong in regard to the act with which he is charged, or was unconscious at the time he committed the act of his true condition, or the nature of the act charged against him, they should find the defendant not guilty."

"6. If the jury shall believe, from the evidence, that, at the time defendant shot the negro, his mind was diseased or unsound, then it is immaterial as to whether the diseased or unsound condition of his mind was the result of the excessive use of whiskey or other intoxicants; or of disease, injury, or other cause; and though the jury should believe that such diseased or unsound condition of mind was the result of drunkenness, or the excessive use of intoxicants, such diseased or unsound condition of mind is entitled to the same consideration as a diseased or unsound condition of mind arising from any other cause."

"7. If the jury believe, from the evidence, that, at the time defendant shot the deceased, his mind had been so far impaired or destroyed that he was unconscious, at the time of committing the act, that it was wrong, and that he ought not to do it; or that he was irresistibly impelled to the commission of the act by an insane impulse, and had not the ability to resist that impulse, nor to control his actions, and choose between right and wrong, you will find him not guilty."

"8. If the jury believe, from the evidence, that, at the alleged killing, the defendant was so far insane as not to be able to distinguish between right and wrong with respect to the act in question, or if they should find, from the evidence, that he was urged to the commission of the act by an insane impulse so powerful as to overcome his will and judgment, or so powerful that he was unable to restrain it, even though he might know and feel that the act he was committing was wrong and a violation of law, then, in contemplation of law, he would be insane and you should acquit him."

"9. The court instructs the jury that if they believe, from the evidence, that, at the time of the killing, the mental and moral faculties of the defendant were so perverted from their normal condition by the habitual use of intoxicating liquors as to prevent him from understanding the nature and consequences of the act, then it will be the duty of the jury to find the defendant not guilty."

"10. Although the jury may believe, from the evidence in the cause, that defendant was drunk at the time he shot the deceased, still the jury will find the defendant not guilty if they believe, from the evidence, that at the time the defendant was insane."

"11. Although the jury may believe, from the evidence, that defendant killed deceased while drunk, still the jury will find the defendant not guilty, unless they further believe, from the evidence, that such killing was the immediate result of a fit of intoxication, and not of insanity."

"12. The term insanity, as used in the instructions, means such a perverted and deranged condition of the mental and moral faculties as renders a person incapable of distinguishing between right and...

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