State v. Curtis

• Decision Date: 31 October 1879
• Citation: 70 Mo. 594
• Parties: THE STATE v. CURTIS, Appellant.
• Court: Missouri Supreme Court

70 Mo. 594

THE STATE

v.CURTIS, Appellant.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Livingston Circuit Court.--HON. E. J. BROADDUS, Judge.

REVERSED.

Shanklin & Waters for appellant.

J. L. Smith, Attorney-General, for the State.

HOUGH, J.

The defendant was indicted for murder in the first degree, for the killing of one Chas. Powell, and was tried and convicted of murder in the second degree.

In a difficulty at a disreputable house in Chillicothe, on the night of the 27th of July, 1878, the deceased was stabbed and mortally wounded, and on the 14th day of September following, died of the wounds then received. The deceased, the defendant and one Stoner, and others were together in a room, the only light in which was a lamp, which the deceased took in his hand to go into an adjoining room, when it either fell into the lap of the defendant or was knocked from Powell's hand by the defendant, and was extinguished, and a struggle ensued in the dark, in which deceased was stabbed. The testimony tended to fasten the crime upon the defendant. The deceased immediately after being stabbed left the house, and walked about one hundred yards, when he fell and soon after became insensible, and so remained until six o'clock next morning.

The defendant offered to prove by the sheriff that he arrested Stoner and took him to Powell's room between nine and ten o'clock on the morning of the 28th, and that Powell recognized Stoner as the man who cut him. This testimony was rejected by the court, and its exclusion is assigned as error. The defendant also complains of the action of the court in giving the following instructions on the part of the State.

4. The jury are instructed, if they believe from all the facts and circumstances beyond a reasonable doubt, that the defendant willfully and with his malice aforethought, but without deliberation and premeditation, stabbed and killed the deceased, Charles Powell, as charged in the indictment at the county of Livingston, and State of Missouri, then they will find him guilty of murder in the second degree, and assess his punishment at imprisonment in the State penitentiary for a term not less than ten years. The jury are instructed that murder in the second degree is the wrongful killing with malice aforethought, but as stated above, without premeditation and deliberation; it is where the intent to kill is in a heat of passion executed the instant it is conceived or before there has been time for passion to subside.

8. In considering what the defendant said after the fatal stabbing, the jury must consider it all together. The defendant is entitled to the benefit of what he said for himself, if true, as the State is anything he said against himself in any conversation proved by the State. What he said against himself in any conversation the law presumes to be true, because against himself; but what he said for himself the jury are not bound to believe because said in a conversation proved by the State; they may believe or disbelieve it as it is shown to be true or false by all the evidence in the case.

10. The court instructs the jury that if the killing was committed willfully, premeditatedly and deliberately with means and instruments likely to produce death, then the malice requisite to murder will be presumed; and if the jury are satisfied from the evidence, beyond a reasonable doubt, that the defendant stabbed and killed Charles Powell willfully, maliciously, premeditatedly and deliberately with an instrument likely to produce death, then it devolves upon the defendant to adduce evidence to meet and repel such a presumption.

1. EVIDENCE: murder.

The statements of the deceased, on the morning after the difficulty, identifying Stoner as his assailant, were properly rejected. They were not made in extremis, and indeed were not offered as dying declarations, and hence, were not admissible on that ground. Nor could they, in any point of view, be regarded as the declarations of a party to the record, or as binding upon the State. In criminal prosecutions the State sustains no such relation to the party injured as will render his declarations admissible in evidence against the State. Commonwealth v. Densmore, 12 Allen 535; People v. McLaughlin, 44 Cal. 435. Nor were the declarations of the deceased admissible as part of the res gestae. Immediately after the stabbing and before Powell left the house, he declared that Curtis cut him, and while being carried to the hotel from the place where he fell, he was sufficiently conscious to state where he wished to be taken. The statement sought to be introduced was not made until nearly four hours had elapsed after his return to consciousness on the morning o the 28th. So that there was no such continuing unconsciousness from the time when the wound was inflicted to the time when the declaration was made, as would render such declaration a part of the res gestae even on the theory contended for by the defendant.

2. MURDER: first degree.

The fourth instruction given on behalf of the State is erroneous. It is contradictory and calculated to mislead. There is no murder in the second degree under our statute without premeditation. No homicide can be murder in the second degree, which was not murder at common law. The statute so declares, Wag. Stat., p. 446, § 2. To constitute murder at common law, the homicide must have been committed “willfully and with malice aforethought,” or as the statute of 23 Henry VIII, chap. 1, § 3, expressed it “of malice prepensed.” Now the word “aforethought,” and “prepensed” or “prepense,” each mean “premeditated” or thought of before hand. These words, thus explained, do not mean that malice should be premeditated, for as was said in the State v. Wieners, 66 Mo. 20, that would be absurd, as malice is only a condition of the mind, but they mean that the act which the party is prompted by his malice to commit should be premeditated or thought of before hand, and if such act so prompted, be homicide, then of course it must be premeditated. Keenan v. Com., 44 Penn. St. 55. The words “with malice aforethought” are equivalent to the words ““with malice and premeditation.” People v. Vance, 21 Cal. 400.

Now to tell the jury that...