State v. Banks

• Decision Date: 22 March 1881
• Citation: 10 Mo.App. 111
• Parties: STATE OF MISSOURI, Respondent, v. JAMES BANKS, Appellant.
• Court: Missouri Court of Appeals

10 Mo.App. 111

STATE OF MISSOURI, Respondent,

v.JAMES BANKS, Appellant.

St. Louis Court of Appeals, Missouri.

Mar. 22, 1881.

1. Where a pistol is purposely discharged at another and causes the latter's death, the presumption of an intention to kill is conclusive.

2. Where one, having threatened to kill another, executes the threat by shooting, his testimony that his intention was not to kill, but simply to frighten his victim, will not warrant an instruction for a grade of homicide less than murder in the first degree.

3. Statements of the deceased made at the time the shot was fired are competent.

4. That the prosecuting attorney exceeds the fair limits within which he should confine himself in his closing argument to the jury is not always a ground for a reversal.

APPEAL from the St. Louis Criminal Court, LAUGHLIN, J.

Affirmed.

ROBERT W. GOODE, for the appellant: Language not warranted by the evidence and calculated to prejudice the jury should not be used by the prosecuting attorney in his argument.-- The State v. Lee, 66 Mo. 165; The State v. Degonia, 69 Mo. 485. An unlawful intent is necessary to constitute murder in the first degree.-- The State v. Phillips, 24 Mo. 475; The State v. Hicks, 27 Mo. 588. The question of intent is an issue for the jury.-- The State v. Stewart, 29 Mo. 419. There was evidence which required an instruction as to murder in the second degree.-- The State v. Peyton, 9 Mo. App. 599; The State v. Curtis, 70 Mo. 594.

DAVID MURPHY and J. C. NORMILE, for the respondent: Declarations of the deceased made simultaneous with the shooting, were competent.-- The State v. Sloan, 47 Mo. 611; Brownell v. Railroad Co., 47 Mo. 239; Insurance Co. v. Mosely, 8 Wall. 391; The Commonwealth v. Pike, 3 Cush. 181.BAKEWELL, J., delivered the opinion of the court.

Defendant was convicted of murder in the first degree. It appears from the evidence that the wife of defendant was employed as a domestic servant in St. Louis; that her husband desired her to leave her service and return to him; that the head of the family in which she was employed insisted that she should do so, in order to relieve the household of the annoyance which was occasioned to the family by the frequent visits and remonstrances of defendant, who complained of his wife living apart from him, and was constantly insisting that she should return. The wife did return to her husband for a few days; but, upon begging to be taken into service again, that she might be protected from her husband, whom she accused of kicking and maltreating her, she was taken back, and resumed her duties as a domestic servant in the same family. Defendant renewed his visits and solicitations, and was forbidden the house by the master of it. Defendant stated to one witness that he would kill his wife if she would not come back to him. On Sunday, March 28, 1880, after dark, as the woman was standing near the window of a room on the first floor, in the house in which she was employed, a shot was fired through the glass by some person outside, which went entirely through her body, and resulted in her death. The master of the house was in the room in which the deceased was washing dishes close to the window when the shot was fired. There was a moon, and it was not quite dark outside. At the time the shot was fired this witness saw a black face at the window. Defendant is a colored man. The witness would not swear that the face was that of Banks, but it looked like it. He says that the person who fired the shot stood on the cellar-door, which was immediately under the window. Banks was arrested as he was getting on a New Orleans steamer. He had on his person a revolver of which two chambers were discharged. He at first denied his name, but shortly afterwards said to the officer making the arrest, that concealment was useless; that he had shot his wife; that she had left him often; she was his property, and he was determined to have her back; that he shot at her to scare her. Defendant himself testified that he shot his wife; that he was in the yard sixty feet off at the time; that he did not mean to hit her, but wanted to scare her so that she would come home and live with him; and that he did not know he had hit her until the policeman told him so.

The court instructed on murder in the first degree. The instruction was a correct statement of the law of murder in the first degree, as now defined by the Supreme Court.

Counsel for defendant contends that, inasmuch as defendant testified that he shot at his wife merely to scare her, and not meaning to hit her, the instructions should not have been confined to murder in the first degree.

That defendant had threatened to kill his wife, that he lay in wait for her, that he shot at her, and that he killed her, there can be no question. Such is the undisputed evidence in the case. As a witness in his own behalf, he testifies that he did not intend to kill her. An intent to kill is held to be necessary to constitute murder in the first degree, in Missouri. The State v. Lane, 64 Mo. 320. Did this statement of defendant tend to rebut the presumption of an intent to kill arising from the undisputed facts of the case? If so, we can conceive no case of homicide in which it will not be necessary for the trial court to...