73 Mo. 592 (Mo. 1881), State v. Banks

Citation:73 Mo. 592
Opinion Judge:SHERWOOD, C. J.
Party Name:THE STATE v. BANKS, Appellant.
Attorney:Robert W. Goode for appellant. D. H. McIntyre, Attorney General, for the State
Court:Supreme Court of Missouri
 
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Page 592

73 Mo. 592 (Mo. 1881)

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...

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