State v. Byrne

• Decision Date: 31 October 1856
• Citation: 24 Mo. 151
• Parties: THE STATE, Respondent, v. BYRNE, Appellant.
• Court: Missouri Supreme Court

24 Mo. 151

THE STATE, Respondent,

v.BYRNE, Appellant.

Supreme Court of Missouri.

October Term, 1856.

1. Where the circumstances of a homicide show beyond all question that it was committed by lying in wait (it being assumed by the prosecution and by the accused that the only question for determination is, whether the accused committed the homicide), it is not error to refrain from instructing the jury as to the law of murder in the first and second degrees.

Appeal from Cape Girardeau Circuit Court.

The following were the only instructions given to the jury: “The jury will acquit, unless the evidence exclude from their minds all reasonable doubt as to the guilt of accused. The conduct of the accused, before and after the death of Thomas J. Calhoun, may be taken into consideration in determining the guilt or innocence of the accused. The character of the accused for peace and humanity may also be taken into consideration, and such weight given thereto in repelling presumptions of guilt as the jury may think it entitled to from the evidence in this case.”

Frissell and Blennerhassett, for appellant.

H. A. Clover (circuit attorney), for the State.

RYLAND, Judge, delivered the opinion of the court.

The defendant, William Byrne, was indicted at a special term of the Circuit Court of the county of Scott, held on the fourth Monday of June, in the year 1855, for the murder of Thomas J. Calhoun. On the same day that the indictment was returned into court by the grand jury, viz: on the 26th of June, 1855, the defendant, then in the custody of the sheriff of Scott county, appeared in court and filed his petition, verified by his oath, praying for a change of venue in this case. The venue was changed accordingly, and on his application, to the county of Cape Girardeau, and the defendant was ordered to be conveyed to said county and delivered to the custody of the jailer thereof. The transcript of the record of the proceedings was filed in the office of the clerk of the Circuit Court of Cape Girardeau county, on the 19th day of August, 1855. At the November term of said court the case was called for trial, the defendant was arraigned, and pleaded “not guilty” to the indictment. A trial was had, and the defendant was found guilty of murder in the first degree. He moved for a new trial, which was overruled, and exceptions taken. He moved an arrest of judgment, which was also overruled, and exceptions taken; and thereupon judgment was rendered on the verdict, and sentence passed on the prisoner. He appealed to this court. The Circuit Court allowed the appeal, with stay of execution of the sentence, until the judgment of this court was had on the case.

The evidence was circumstantial. It showed that Thomas J. Calhoun was killed on the 21st of May, 1855, in Scott county, while he was engaged in plowing in his own field. He was shot by some person from a thicket of briers and brush inside of his field, there was a forked poplar sapling in the thicket, and it seems from the tracks of a person around and at this sapling, and from the appearance of the briers and brushes being broken and pushed aside, that the murderer had concealed himself and laid in wait for his victim at this place, and from this place shot Calhoun in his back, as he was in all probability turning around his horse and plow. There could be no doubt of the killing being murder in the first degree. Calhoun was found a short distance from his plow; he had gone towards the road near the fence, and had fallen four or five times, as appeared from the blood and impressions on the plowed ground. When found, he was dead, and had no weapons with him; the gun was heard to fire, then a second report was heard. Calhaun was heard to halloo after the gun was fired. The testimony is lengthy and not necessary to be inserted in this opinion. The only question was, who did the bloody deed? That it was murder in the first degree seemed never to have been doubted. The testimony satisfied the jury that the prisoner was the guilty man, and we think they were justified in coming to that conclusion.

The counsel for the prisoner in this court has...