State v. Dearing

• Citation: 65 Mo. 530
• Parties: THE STATE v. DEARING, APPELLANT.
• Decision Date: 31 October 1877
• Court: United States State Supreme Court of Missouri

65 Mo. 530

THE STATE

v.DEARING, APPELLANT.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Washington Circuit Court--HON. JOHN B. ROBINSON, Judge.G. I. Van Allen, for appellant, cited 3 Green. Ev. § 148; 1 Whart. Am. Crim. Law (6 ed.) p. 41; 2 Green. Ev. § 374; 1 Russ. Crim. (5 ed.) 7; State v. Klinger, 46 Mo. 224; Wag. Stat. 1046, § 47; Chouquette v. Barada, 28 Mo. 499; Sawyer v. Han. & St. Jo R. R. Co. 37 Mo. 263; State v. Cross, 27 Mo. 334

Joseph J. Williams, for appellant, cited State v. Mitchell, 64 Mo. 191; State v. Mathews, 20 Mo. 55; State v. Stonum, 62 Mo. 596; State v. Hudson, 59 Mo. 135.

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

NAPTON, J.

This was an indictment for murder in the first degree, and the defendant was convicted and sentenced to be hung. It is unnecessary to an understanding of the points of law presented that any detailed account of the circumstances of the affray in which the homicide was committed, should be given. It occurred at a dancing party at Cannon Mine, in Washington county, where the parties, both the defendant and deceased, and several of the witnesses, were drunk. The defendant and the person killed had been intimate friends and associates from childhood, and no ill-feeling between them had ever been known to exist by any of the witnesses. There was evidence that the defendant had been struck on the head by a pistol and prostrated by the blow previous to the scuffle between him and the person killed. In the course of the testimony of the first witness for the State, the defendant's counsel asked the following question: “Do you know whether or not Dearing had been drinking before the scuffle with and stabbing of Boquette?” This question was objected to, and the court sustained the objection. The defendant's counsel then asked the following question: “State if you know whether defendant was under the influence of liquor and what was the condition of his mind at the time of the scuffle, whether from intoxication or otherwise?” This question was also excluded, and the court, in sustaining the objection, read from the opinion of this court in the case of the State v. Hundley, (46 Mo. 418.) Whilst the judge was reading the opinion, in presence and hearing of the jury, the defendant's counsel objected to this course as improper, for the reason that it might prejudice the jury, and asked that the jury might be sent out, in charge of the sheriff, which the court refused to do. An exception was taken to this action of the court. In the fourth instruction given by the court to the jury, it is observed by the court: “that the distinction between murder in the first degree and murder in the second degree lies in the intention with which the act of killing was done. Where a homicide has been committed, and there was an intention to commit the act, then, in the absence of any circumstances of excuse, justification or palliation recognized by law as sufficient, it is murder in the first degree.” The tenth instruction was that “if from the circumstances attending the killing, the weapon used, the nature and extent of the injury inflicted and the amount of violence used, with all the other evidence in the case, the jury was satisfied that defendant intended to kill deceased and did kill him with malice as before defined, then the circumstance of his being drunk to insensibility at the time, is not sufficient to...