State v. Fritterer

• Decision Date: 31 October 1877
• Citation: 65 Mo. 422
• Parties: THE STATE v. FRITTERER, APPELLANT.
• Court: Missouri Supreme Court

65 Mo. 422

THE STATE

v.FRITTERER, APPELLANT.

Supreme Court of Missouri.

October Term, 1877.

Error to Phelps Circuit Court.--HON. V. B. HILL, Judge.

The following are among the instructions given by the court at the trial:

3. The court further instructs the jury that malice in the legal sense means a wrongful act done intentionally without legal cause or excuse, which malice is evidenced by antecedent menaces and preconcerted schemes to do the deceased some bodily harm; and if you find from the evidence that defendant struck deceased and wounded him, as alleged in the indictment, with an axe or other instrument, as charged, likely to produce death or great bodily harm, the law presumes that defendant struck and wounded him in malice.

5. The court instructs the jury that if they believe from the evidence in this cause that defendant killed Martin Haverty intentionally, but such killing was done without premeditation and not done in the commission or attempt to commit a felony by deceased, and was not justifiable or excusable, they will find defendant guilty of murder in the second degree, and assess his punishment at imprisonment in the penitentiary for a term not less than ten years.J. L. Smith, Attorney General, for the State, cited: State v. Lane, 64 Mo. 319; State v. Underwood, 57 Mo. 40; State v. Hudson, 59 Mo. 135.

NORTON, J.

The defendant was indicted at the August term, 1876, of the Phelps County Circuit Court, for murder in the first degree, in killing one Martin Haverty. He was duly arraigned and put upon his trial at the November special term, 1876, of said court, which resulted in his conviction for murder in the second degree. A motion for new trial having been made and overruled, the cause is brought here for review on appeal. We are left to an examination of this case without the aid of any brief on the part of defendant's counsel, and find upon examination of the record, that the grounds alleged in the motion for new trial are: First, because the court failed to insert “malice aforethought” in the instructions; secondly, because the verdict is contrary to the evidence, and because the jury disregarded the instructions given by the court for defendant; thirdly, because defendant was taken by surprise, and had discovered new testimony since the commencement of the trial, but too late to avail himself of it on the trial.

The word malice having been fully and correctly defined in the third instruction given by the court, the first error assigned has no standing.

The second ground of error assigned that the verdict was against the evidence, cannot be inquired into here, because the evidence offered on the trial is not presented in the bill of exceptions, the record only stating what the evidence offered tended to prove, without stating, what the...