The State v. Ashcraft

• Decision Date: 02 December 1902
• Citation: 70 S.W. 898,170 Mo. 409
• Parties: THE STATE v. ASHCRAFT, Appellant
• Court: Missouri Supreme Court

70 S.W. 898

170 Mo. 409

THE STATE v. ASHCRAFT, Appellant

Supreme Court of Missouri, Second Division

December 2, 1902

Appeal from Howard Circuit Court. -- Hon. Jno. A. Hockaday, Judge.

Affirmed.

S. C Major for appellant.

Edward C. Crow, Attorney-General, for the State.

The first instruction correctly defined murder in the first degree. State v. Cushenberry, 157 Mo. 168. Instruction number two was a proper declaration of law as to murder in the second degree. Instruction number twelve correctly stated the law as to the right of the defendant to act when he apprehended and had cause to apprehend deceased was about to inflict upon him some great bodily injury. A mere allegation in the motion for a new trial does not make it a subject for review here unless it is properly preserved otherwise than in the motion for a new trial, in the bill of exceptions.

OPINION

SHERWOOD, P. J.

Having been indicted for murder in the first degree, for shooting Henry Hughes with a revolver, whereof he died, defendant was found guilty of murder in the second degree and his punishment assessed at ten years' imprisonment in the penitentiary, and he is an appellant in this court.

The testimony shows that the defendant and the deceased had met in McLaughlin's saloon, in the town of New Franklin, east of where the killing occurred, in the neighborhood of six o'clock that evening, and the defendant testified that the deceased took defendant's cap from his head, placed it on his own and threw his old cap down on the counter and left and that defendant followed deceased out of doors, but deceased went on off with the cap.

The deceased, between six and seven o'clock, was at the house of Emma Robinson, west of where this saloon was situated, quite a distance, in the town of New Franklin, and there were present Emma Robinson, Ida Ford, Mamie Stapleton, Charlie Hughes and one or two others.

The defendant left the saloon shortly after the occurrence he relates between himself and the deceased, and soon put in his appearance at the home of Emma Robinson. He walked quietly into the house, and seeing the deceased sitting in a chair, defendant observed his cap lying upon the bed and he walked over and picked it up and asked the deceased why he took his cap or hat, and deceased denied that he had defendant's cap, and some controversy occurred between them about the matter and deceased made a movement of some kind in his chair, the exact nature of which the record does not disclose, and defendant put his hand in his pocket, and at this point Mrs. Robinson interfered and said she had a sick daughter in her house and would have no trouble there. Defendant told her he would not have any trouble in her house and went out the door and deceased remained sitting in the chair which he had occupied when defendant entered the house. It seems there was a path leading from the house to the street and soon after the defendant went out one or two witnesses left the house, one of them going up towards the town and another one in the direction of his own home, which was near the house of Mrs. Robinson.

In a few minutes, the deceased arose and left the house, and soon afterwards he was seen between the street and the house and near to the defendant, and defendant was observed to fire a shot which struck the deceased in the neck, inflicting a wound, from which he died shortly thereafter. The evidence shows that the deceased ran, after the shot was fired, to the street and up the same some distance struggling and staggering and finally fell and was picked up and placed on a cot and carried to his stepfather's house and died without making any dying declaration as to the facts concerning the homicide.

The defendant testified that shortly after he left the house and before he reached the street, some one came running towards him and his attention was attracted by the noise of the rapid footsteps on the snow, and he turned and by the moonlight saw that deceased was rapidly approaching him, with a pocket knife open in his right hand, from behind, inquiring "Where is he?" that he continued to approach the defendant, when defendant called to him to halt, the deceased paying no attention to the request of the defendant and continuing to come towards him until he got almost within striking distance, and aiming to make at him with the knife, when defendant says he stepped over to the side of the path to avoid deceased striking him with the knife, and then he, the defendant, pulled his weapon and fired the shot which killed the deceased.

The defendant went up town and delivered himself to the authorities.

There was evidence introduced tending to show the good character of the defendant as a peaceable and good citizen, and that he was a negro boy who had been reared in Howard county near the scene of the tragedy.

The court instructed the jury upon murder in the first degree, murder in the second degree and self-defense.

A witness who was present where Hughes was found in a very few moments after he fell, made search of his body and only found on him a pocket knife, but that was in an inner pocket of his clothing, and it was shut.

Defendant admitted he had shot Hughes, and with the pistol exhibited in the courtroom.

At the instance of the State, the court gave these instructions:

"1. If the jury believe from the evidence beyond a reasonable doubt, that the defendant Arthur Ashcraft, in Howard county Missouri, on or about the sixteenth day of December, 1899, with a certain pistol, willfully, deliberately, premeditatedly, and of his malice aforethought shot and killed Henry Hughes, then the jury will find the defendant guilty of murder in the first degree and will so state in their verdict.

"2. If the jury believe from the evidence beyond a reasonable doubt, that the defendant Arthur Ashcraft, in Howard county, Missouri, on or about the 16th day of December, 1899, with a certain pistol, willfully, premeditatedly, and of his malice aforethought, but without deliberation, shot and killed Henry Hughes, then the jury will find the defendant guilty of murder in the second degree, and assess his punishment at imprisonment in the penitentiary for a term of not less than ten years.

"3. The court instructs the jury that if they believe from the evidence beyond a reasonable doubt, that the defendant intentionally killed Henry Hughes by shooting him with a loaded pistol in a vital part of the body, then the law presumes such killing was murder in the second degree, in the absence of proof to the contrary, and it devolves upon the defendant to adduce evidence to meet or repel that presumption; unless it is met or overcome by evidence introduced by the State.

"4. The court instructs the jury that 'willfully' means intentionally, not accidentally, and in the absence of qualifying facts and circumstances, the law presumes that a person intends the ordinary and probable results of his own acts and conduct.

"5. The court instructs the jury that 'malice,' as used in the indictment and foregoing instructions, does not mean mere spite and ill will or dislike as it is ordinarily understood; but means that condition of the mind which prompts one person to take the life of another without just cause or provocation, and it signifies a state of disposition which shows a heart regardless of social duty and fatally bent on mischief.

"6. The court instructs the jury that 'malice aforethought' means that the act was done with malice and premeditation. 'Premeditation' means thought of beforehand for any length of time, however short.

"7. The court instructs the jury that 'deliberately' means in a cool state of the blood; it does not mean brooded over or reflected upon for a week, a day or an hour; but it means an intent to kill, executed by defendant in a cool state of the blood, in furtherance of a formed design to gratify a feeling of revenge, or to accomplish some other unlawful purpose, and not done under the influence of a violent passion suddenly aroused by some provocation.

"8. If the jury have a reasonable doubt as to defendant's guilt, they should acquit; but a doubt to authorize an acquittal on that ground ought to be a substantial doubt touching defendant's guilt, and not a mere possibility of his innocence.

"9. The jury are the sole judges of the weight of the evidence, and credibility of the witnesses; in determining what weight they will give to the testimony of any witness the jury should take into consideration the interest of the witness in the event of the case, as a party or otherwise; the manner and conduct of the witness on the stand; any feeling or motive which may have influenced the witness in testifying; the probability or improbability of the testimony of such witness, in view of all the evidence, facts and circumstances surrounding the case.

"10. If the jury believe that any witness has willfully sworn falsely to any material facts in the case, they are at liberty in the exercise of their judgment to disregard all or any part of such witness's testimony.

"11. The court instructs the jury that the defendant is a competent witness in his own behalf, but in determining the weight and credibility you will give to his testimony the jury may take into consideration that he is the defendant testifying in his own behalf and the interest he may have in the result of this trial.

"12. The court instructs the jury that before they can acquit the defendant on the ground of self-defense, they must find and believe from the evidence that the defendant had reasonable cause to apprehend, and did apprehend, that Henry Hughes, the deceased, was about to inflict upon him some great bodily harm, or take his life, and defendant believed, and had reasonable cause to...