State v. Banks

• Citation: 73 Mo. 592
• Parties: THE STATE v. BANKS, Appellant.
• Decision Date: 30 April 1881
• Court: United States State Supreme Court of Missouri

73 Mo. 592

THE STATE

v.BANKS, Appellant.

Supreme Court of Missouri.

April Term, 1881.

Appeal from St. Louis Court of Appeals.

REVERSED.

Defendant was indicted for murder in the first degree in killing his wife, Annie Banks. She had refused to live with him any longer, alleging cruel treatment, and had obtained employment as a domestic servant. He had insisted upon her returning to him, and, there was evidence tending to show, had threatened to kill her if she did not. There was also other evidence tending to identify defendant as the person who did the killing. The fatal shot was fired through a window, the shutters of which were open, at night, as the woman stood at work in the house of her employer. There was evidence tending to show that the person who fired it must have been very close to her--within a few feet. Defendant testified on his own behalf, admitting the killing, but claiming that he was sixty feet off when he fired the shot, and that he did not mean to hit her, only wanted to scare her so she would come home and live with him. The court instructed the jury as follows: The prisoner at the bar stands charged with the crime of murder of the first degree. By the indictment it is alleged that he did feloniously, willfully, deliberately, premeditatedly and of his malice aforethought, kill one Annie Banks, by shooting her with a pistol. His guilt or innocence of this charge is the sole question submitted by the court for your decision. To enable you to pass upon this charge, and to determine its truth or falsity intelligently and correctly, it is of the very highest importance, that you fully comprehend it; for how can you decide unless you first understand it? Your attention, therefore, is in the very outset of these instructions invited to consider the precise legal import of the terms by which this grave charge is set forth in the indictment. By the term ““feloniously” is meant wickedly and against the solemn admonitions of the law. It means from a depraved and reckless heart--one which regards not social obligations, but is fatally bent on mischief. An act which proceeds from such a heart, and is of itself unlawful, is a felonious act. By the term “willfully” is meant intentionally, not by accident. Unless an act be intentionally done, it is not willful. But if intentional, it is willful. By the term ““““deliberately” is meant in a cool state of the blood, not in that heated state which the law denominates “passion,” and by passion is meant not that which comes of no cause, but that, and that only, which is produced by some reasonable provocation. By the term “premeditatedly” is meant thought of beforehand; but for any length of time however short. It means thought of in the sense of thought over. If an act be committed before it has been reflected on and conceived by the mind of the actor, it is not a premeditated act. But if reflected on at all, even for a moment, before its accomplishment is begun, and the design to perpetrate it precedes the act, such an act is a premeditated act in the meaning of the law. By the term “malice” is meant the intentional doing of a wrongful act without just cause or excuse for it, and by the term “malice aforethought” is meant an intent to do an evil deed formed in and by the mind before the doing of the deed is begun. In other words, by “malice aforethought” is meant simply a mental condition, and as applied to this case they mean an intent on the part of the defendant, fully formed, actually to take life before the act of killing was begun. The killing of a human being which has all these elements of moral turpitude existing together in the act, is in law murder of the first degree. But if lacking all of them, or if lacking any one of them, such a killing is not murder of the first degree. If, therefore, from the evidence you believe and find, that at the city of St. Louis, and at some time prior to the finding of the indictment, this defendant did, with the pistol alleged, loaded as alleged, make an assault upon the said Annie Banks; that with it he did shoot and kill her in the manner alleged, and that he did so feloniously, willfully, dehberately, premeditatedly and of his malice aforethought, you will find him guilty of murder of the first degree, as by the indictment he is charged; and unless, from the evidence you so believe and find, you will acquit him. If of the guilt of the accused you are convinced by the evidence, beyond a reasonable doubt, your duty, under the law and under the solemnity of your oaths, is to convict him, and if not thus convinced, your duty equally solemn is to acquit him. By the term “convinced beyond a reasonable doubt” is meant convinced to a moral certainty. If thus convinced, you should convict; but if not, then you should acquit. If you find the defendant guilty of murder of the first degree, you will by your verdict simply so say. Your whole duty is to determine in the manner told you, the sole question of his guilt or innocence of this crime. When you will have done this, your duty will have ended; after that the responsibility of all other matters connected...