State v. Cushing

CourtUnited States State Supreme Court of Missouri
Writing for the CourtNAPTON
Citation29 Mo. 215
Decision Date31 October 1859
PartiesTHE STATE, Respondent, v. CUSHING, Appellant.

29 Mo. 215

THE STATE, Respondent,
v.
CUSHING, Appellant.

Supreme Court of Missouri.

October Term, 1859.


1. It is improper to direct a jury in a criminal case to disregard the entire evidence of a witness, if they believe him false in any particular.

2. The courts should not, in instructing juries, comment upon the testimony.

3. It is not incumbent upon the State in a prosecution for murder, if there is a failure to prove that the mortal blow was struck with the weapon mentioned in the indictment, to prove what the weapon used was.

[29 Mo. 216]

Appeal from St. François Circuit Court.

The following is a portion of the charge of the court to the jury: “Murder in the second degree differs from murder in the first degree more in the nature and quality of the evidence necessary in each degree than in the character of the constituent facts pertaining to each; for, in murder in the first degree the law requires that the deliberate purpose to take life or do some great bodily harm should be shown and established by the evidence, and by evidence alone; such evidence as of its own proper and natural weight establishes affirmatively the existence of such deliberate purpose to kill, &c.; whereas murder in the second degree may be made to appear from the fact of killing alone, the prisoner failing to explain by evidence on his part that it was done otherwise than with such deliberate intention, as that it was done in the heat of sudden and uncontrollable passion in lawful self-defence, or in some other less criminal manner. If, therefore, the evidence in the cause is of such character as of its own proper and natural force satisfies the minds of the jury that the prisoner did deliberately and purposely kill the deceased as charged, they will find him guilty of murder in the first degree. But if, on the contrary, the evidence does not thus satisfy the minds of the jury by its own proper force that the prisoner did thus deliberately and purposely kill the deceased as charged, then, in the absence of any extenuating evidence reducing the offence to some grade of manslaughter, or of its being a killing by accident, misfortune, or in justifiable self-defence, the jury will find the defendant guilty of murder in...

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10 practice notes
  • State v. Brinkley, No. 39557.
    • United States
    • Missouri Supreme Court
    • March 11, 1946
    ...excusable homicide and manslaughter, if there be any evidence under any of those heads in the case. Sec. 4377, R.S. 1939; State v. Cushing, 29 Mo. 215; State v. Phillips, 24 Mo. 475. (29) Instruction 2 was erroneous in that it gave jury a confusing statement as to whether a homicide could b......
  • State v. Whipkey, No. 41056.
    • United States
    • Missouri Supreme Court
    • December 13, 1948
    ...in that it told the jury that it was their duty to disregard such testimony, and thus was prejudicial to this defendant. State v. Cushing, 29 Mo. 215; State v. Miller, 234 S.W. 813; State v. Mounts, 106 Mo. 226, 17 S.W. 226; State v. Vansant, 80 Mo. 67; State v. Waller, 259 S.W. 445. (2) Th......
  • Bunce v. McMahon
    • United States
    • United States State Supreme Court of Wyoming
    • October 25, 1895
    ...could be disregarded unless corroborated, was erroneous. (Thompson on Tr., Sec. 2423, 2425; State v. Stout, 31 Mo. 406; State v. Cushing, 29 Mo. 215; State v. McDavitt, 69 Iowa 549; People v. Casey, 65 Cal. 260.) The conduct of the jurors in taking into the jury room the bill of sale which ......
  • State v. Patrick
    • United States
    • Missouri Supreme Court
    • November 23, 1891
    ...as to that or any other fact to which he testified. State v. Mix, 15 Mo. 153; State v. Dwire, 25 Mo. 553. The case of State v. Cushing, 29 Mo. 215, is not in conflict with this doctrine. Blanchard v. Pratt, 37 Ill. 243, is to the contrary, but was cited by this court in Paulette v. Brown, 4......
  • Request a trial to view additional results
10 cases
  • State v. Brinkley, No. 39557.
    • United States
    • Missouri Supreme Court
    • March 11, 1946
    ...excusable homicide and manslaughter, if there be any evidence under any of those heads in the case. Sec. 4377, R.S. 1939; State v. Cushing, 29 Mo. 215; State v. Phillips, 24 Mo. 475. (29) Instruction 2 was erroneous in that it gave jury a confusing statement as to whether a homicide could b......
  • State v. Whipkey, No. 41056.
    • United States
    • Missouri Supreme Court
    • December 13, 1948
    ...in that it told the jury that it was their duty to disregard such testimony, and thus was prejudicial to this defendant. State v. Cushing, 29 Mo. 215; State v. Miller, 234 S.W. 813; State v. Mounts, 106 Mo. 226, 17 S.W. 226; State v. Vansant, 80 Mo. 67; State v. Waller, 259 S.W. 445. (2) Th......
  • Bunce v. McMahon
    • United States
    • United States State Supreme Court of Wyoming
    • October 25, 1895
    ...could be disregarded unless corroborated, was erroneous. (Thompson on Tr., Sec. 2423, 2425; State v. Stout, 31 Mo. 406; State v. Cushing, 29 Mo. 215; State v. McDavitt, 69 Iowa 549; People v. Casey, 65 Cal. 260.) The conduct of the jurors in taking into the jury room the bill of sale which ......
  • State v. Patrick
    • United States
    • Missouri Supreme Court
    • November 23, 1891
    ...as to that or any other fact to which he testified. State v. Mix, 15 Mo. 153; State v. Dwire, 25 Mo. 553. The case of State v. Cushing, 29 Mo. 215, is not in conflict with this doctrine. Blanchard v. Pratt, 37 Ill. 243, is to the contrary, but was cited by this court in Paulette v. Brown, 4......
  • Request a trial to view additional results

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