State v. Alfrey
| Decision Date | 05 November 1894 |
| Citation | 27 S.W. 1097,124 Mo. 393 |
| Parties | The State v. Alfrey, Appellant |
| Court | Missouri Supreme Court |
Appeal from Newton Circuit Court. -- Hon. J. C. Lamson, Judge.
Affirmed.
George & Landis for appellants.
(1) The verdict was against the evidence and was the result of prejudice or passion. State v. McNamara, 100 Mo 100, and authorities therein cited. (2) The court erred in failing to properly define or tell the jury what a "heat of passion" is. State v. McKinzie, 102 Mo. 620. (3) The court erred in not telling the jury that "if the defendant acted in a moment of apparently impending peril, it was not for him to nicely guage the proper quantum of force necessary to repel the assault of the deceased." State v. Palmer, 88 Mo. 572; Nichols v Winfrey, 79 Mo. 544. (4) The defendant was not guilty of murder in either the first or second degree unless there was an intent to kill. (5) The court erred in giving instruction number 10, because it is misleading in this phrase: "and you acquit him of murder and manslaughter in the second degree."
R. F Walker, Attorney General, and Morton Jourdan, Assistant Attorney General, for the state.
(1) The allegation that the testimony is insufficient to support the verdict is, in the face of positive testimony of many witnesses, ridiculous and absurd. Only where there is a total failure of proof will this court interfere upon this alleged error. Counsel for appellant will certainly not contend that there was a total failure of proof upon the part of the state tending to establish the guilt of defendant of murder in the second degree. State v. Young, 24 S.W. Mo. 1038; State v. Richardson, 117 Mo. 586; State v. Moxley, 115 Mo. 644. (2) The defendant will not be heard to complain of the instruction as to murder in the first degree, the jury having found that no such crime had been committed, and he having been convicted of a lesser degree of murder. The instructions in reference to murder in the second degree, as well as those defining the technical words, are in the usual form, and have been many times approved by this court. State v. Lewis, 118 Mo. 83; State v. McCollum, 24 S.W. 1022; State v. Avery, 114 Mo. 495. (3) The court very properly refused to give an instruction as to manslaughter in the first degree. There was not an iota of evidence on which to base such an instruction, and the rule is that an instruction should never be given that is not suggested or supported by the testimony. State v. Lewis, 118 Mo. 83; State v. Parker, 106 Mo. 225; State v. Bulling, 105 Mo. 220; State v. McKinzie, 102 Mo. 620; State v. Herrell, 97 Mo. 106; State v. Chambers, 87 Mo. 406.
At the April term, 1893, of the Barry county circuit court the defendant was indicted by the grand jury of said county for murder in the first degree, for having at said county on the thirty-first day of October, 1892, killed and murdered one Grant Pyatt, with a knife. At the October term, 1893, of said court, the defendant was awarded a change of venue and the cause was transferred to the circuit court of Newton county, where, upon a trial had at the November term, 1893, of the circuit court of said Newton county, he was convicted of murder in the second degree, and his punishment assessed at imprisonment in the penitentiary for a term of ten years. After unsuccessful motions for new trial and in arrest, he appealed to this court.
While the facts connected with the homicide are but few, the evidence with respect thereto was very conflicting and irreconcilable, that on the part of the state tending to show that previous to the time of the difficulty the parties to it were but slightly acquainted; that about 5 o'clock on the evening of the difficulty they met in the village of Eagle Rock, when the defendant bantered the deceased to wrestle with him for $ 10, "back holds," to which deceased replied that he would bet him $ 10, that he could not throw him "side holds." They got out their money, when a controversy arose between them as to whether the holds were to be side or back, during which the deceased called the defendant a liar, or a damned liar, and drew back his left hand, as if to strike, when the defendant struck him with his right hand and stabbed him in the left side from the effect of which he sank to the ground, or fell down on the ground.
The evidence on the part of the defendant, tended to show that he first knocked deceased down with his fist, and after he raised...
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