State v. Gee

• Decision Date: 30 April 1885
• Parties: THE STATE v. GEE, Appellant.
• Court: Missouri Supreme Court

85 Mo. 647

THE STATE

v.GEE, Appellant.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Cedar Circuit Court.--HON. CHARLES G. BURTON, Judge.

AFFIRMED.

The defendant was indicted for murder in the first degree, and on trial was convicted of murder in the second degree, and his punishment assessed at imprisonment in the penitentiary for the term of fifteen years. The court instructed the jury as follows:

“1. The court instructs the jury that the defendant is presumed to be innocent of the offence charged. That before you can convict him, the state must overcome that presumption by proving him guilty beyond a reasonable doubt. If you have a reasonable doubt of defendant's guilt, you must acquit him. But a doubt to authorize an acquittal must be a substantial doubt, founded on the evidence, and not a mere possibility of innocence.

“2. The jury are the sole judges of the credibility of the witnesses, and of the weight to be given to their testimony. In determining such credibility and weight, you will take into consideration the character of the witness, his manner on the stand, his interest, if any, in the result of the trial, his relation to or feelings toward the defendant or the deceased, the probability or improbability of his statements, as well as all the facts and circumstances given in evidence. In this connection you are further instructed that if you shall believe that any witness has knowingly sworn falsely to any material fact, you are at liberty to reject all, or any portion, of such witness' testimony.

“3. If you shall believe, from the evidence, beyond a reasonable doubt, that the defendant, at the time and place mentioned in the indictment, with a pistol, wilfully, deliberately, premeditatedly, and of his malice aforethought, shot and killed Peter Minnick, you will find him guilty of murder in the first degree, and so say in your verdict.

“4. If you shall believe, from the evidence, beyond a reasonable doubt, that the defendant, at the time and place mentioned in the indictment, with a pistol, wilfully, premeditatedly, and of his malice aforethought, but without deliberation, shot and killed Peter Minnick, you will find him guilty of murder in the second degree, and assess his punishment in the penitentiary for a term not less than ten years.

“5. Wilfully means intentionally, not accidentally. In the absence of qualifying facts or circumstances, the law presumes that a person intends the ordinary and probable result of his acts. If you shall believe, from the evidence, that the defendant, with a pistol, shot Minnick in a vital part and killed him, you will find that the defendant intended to kill him, unless the facts and circumstances given in evidence show to the contrary.

“6. Deliberately means in a cool state of the blood. It does not mean brooded over or reflected upon for a week, a day, or an hour, but it means an intent to kill, executed by the defendant, in a cool state of the blood, in furtherance of a formed design to gratify a feeling of revenge, or to accomplish some other unlawful purpose. and not under the influence of a violent passion, suddenly aroused by some provocation.

“7. Premeditatedly means thought of beforehand for any length of time, however short.

“8. Malice, as used in the indictment, does not mean mere spite, ill-will, or dislike, as it is ordinarily understood, but it means that condition of the mind which prompts one person to take the life of another without just cause or justification, and it signifies a state of disposition which shows a heart regardless of social duty, and fatally bent on mischief. Malice aforethought means that the act was done with malice and premeditation.

“9. If you shall believe, from the evidence, that the defendant shot and killed Minnick while he, the defendant, was in a violent passion, suddenly aroused by opprobrious epithets, or abusive words spoken by Minnick to defendant, then such shooting and killing was not done with deliberation, and was not murder in the first degree. On the other hand, although defendant shot and killed Minnick while the defendant was in a violent passion, suddenly aroused by opprobrious epithets or abusive words spoken to him by Minnick, yet if such shooting and killing was done wilfully, premeditatedly, and of his malice aforethought, as heretofore explained, then defendant was guilty of murder in the second degree.

“10. If you shall believe, from the evidence, that the defendant shot and killed Minnick, while the defendant was in a violent passion, suddenly aroused by reason of Minnick having shoved or struck him with his hand or fist, you cannot find him guilty of murder in either degree, for in that case the law presumes that such shooting and killing was not done of defendant's malice, but by reason of such passion. On the other hand, although you may believe that defendant shot and killed Minnick while in a violent passion, suddenly aroused by a shove or a blow from Minnick, yet, if you shall further believe, from the evidence, that such shooting and killing was not done in self-defence, as hereinafter explained, you will find him guilty of manslaughter in the fourth degree.

“11. If you find the defendant guilty of manslaughter in the fourth degree, you will assess his punishment at imprisonment in the penitentiary for two years, or by imprisonment in the county jail not less than six months, nor more than twelve months; or by a fine of not less than five hundred dollars, nor more than one thousand dollars; or by both a fine of not less than one hundred dollars and imprisonment in the county jail not less than three months.

“12. Although you may believe, from the evidence, that defendant shot and killed Minnick; yet, if you shall further believe, from the evidence, that such shooting and killing was done in self-defence, as hereinafter explained, you will acquit him.

“13. Upon the question of self-defence, the court instructs you that if at the time defendant shot Minnick, he, the...