9 S.W. 624 (Mo. 1888), State v. Jackson

Citation:9 S.W. 624, 96 Mo. 200
Opinion Judge:Norton, C. J.
Party Name:The State v. Jackson, Appellant
Attorney:Boyd & Sebree for appellant. B. G. Boone, Attorney General, for the State.
Judge Panel:Norton, C. J. Ray, J., absent.
Case Date:November 12, 1888
Court:Supreme Court of Missouri
 
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Page 624

9 S.W. 624 (Mo. 1888)

96 Mo. 200

The State

v.

Jackson, Appellant

Supreme Court of Missouri

November 12, 1888

Appeal from Saline Criminal Court. -- Hon. John E. Ryland, Judge.

Affirmed.

Boyd & Sebree for appellant.

(1) The evidence offered by the state showed that the killing of Dodson by defendant was in defense of defendant's person from an assault made upon and danger threatened to defendant by one Dick Green, while deceased was holding defendant; and it was the duty of the court to have directed the jury, at the close of the state's evidence, to return a verdict of not guilty, as requested by defendant. Wharton's Prac. and Plead., secs. 708, 812, 813; State v. Daubert, 42 Mo. 245. (2) The first and second instructions for the state should not have been given. The evidence of the state showed that there was no deliberation and no malicious intent, so that if there was any crime it was manslaughter and not murder, and the court should have instructed for manslaughter in second and third degrees. R. S. 1879, secs. 1243, 1244; State v. Branstetter, 65 Mo. 154; State v. Hill, 69 Mo. 451; State v. Ellis, 74 Mo. 207; State v. Umfried, 76 Mo. 404; State v. Jones, 64 Mo. 391; State v. Green, 66 Mo. 631; State v. Foster, 61 Mo. 550; State v. Rider, 95 Mo. 474. (3) The instruction for manslaughter in fourth degree should not have been given. If there was any crime, it was manslaughter in either second or third degree. R. S. 1879, secs. 1243, 1244. (4) Under all the evidence the verdict should have been for acquittal. While the different witnesses appear to differ in reference to particulars of the occurrence, yet when all the evidence for the state is considered, it clearly appears which witnesses were right, and that the killing was in self-defense.

B. G. Boone, Attorney General, for the State.

(1) Appellant did not complain of the excusing or exclusion of Davidson from the array until after verdict. Objections to the summoning or empaneling of jurors must be made at the time. State v. Collins, 86 Mo. 245. Even when taken in time, such objections will be disregarded unless it appears that defendant has suffered prejudice. State v. Ward, 74 Mo. 253. (2) Instructions were given for murder in the first and second degree, manslaughter in the fourth degree and other formal instructions required to be given in criminal cases. From the simple act of killing the law presumes murder in the second degree. State v. Gassert, 65 Mo. 352, and cases cited. The intention to kill, which is of the essence of murder in the second degree, clearly appears from the evidence in this case. State v. Gassert, supra. The giving of any instruction in this case for a grade of homicide lower than murder in the first and second degree was erroneous. As defendant was not convicted of any grade of manslaughter he will not be heard to complain. State...

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