State v. Harris

• Decision Date: 31 October 1882
• Citation: 76 Mo. 361
• Parties: THE STATE v. HARRIS, Appellant.
• Court: Missouri Supreme Court

76 Mo. 361

THE STATE

v.HARRIS, Appellant.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Macon Circuit Court.--HON. ANDREW ELLISON. Judge.

REVERSED.

Dysart & Mitchell for appellant.

1. The omission of the word “beforehand” in the definition of premeditation, is fatal. Premeditation is an element of murder in the second degree, and the prisoner was entitled to have it properly defined. State v. Kotovsky, 74 Mo. 247; State v. Curtis, 70 Mo. 594; State v. Sharp, 71 Mo. 218; State v. Ellis, 74 Mo. 207. The definition given does not explain but obscures; it is the definition of a different word.

2. The testimony of the defendant in regard to the threat of the deceased was not hearsay. It was direct evidence liable to influence his conduct.

D. H. McIntyre, Attorney General, for the State.

1. Leaving out the word “beforehand” could not have done the defendant any harm, and as applied to the case and understood by the jury, the meaning of the term remained the same, notwithstanding such omission. It refers to the act of killing, and means that it must be thought of beforehand--that is, before its commission. The jury could only have understood the instruction in this way, and if the act was thought of before committed, for any length of time, however short, it must have been thought of beforehand.

2. The evidence of the threat comes within none of the exceptions to the rule excluding hearsay evidence which are (1) In matters of public and general interest. (2) Questions of pedigree. (3) Of the exception with reference to ancient possession. (4) In the case of dying declarations. (5) In the case of declarations against interest by persons since deceased. (6) In the case of declarations of entries made in the course of office or business. (7) In the case of testimony given on a former trial by a witness since deceased. (8) In the case of an admission by a party to the suit, or by a partner or agent of a party. (9) In the case of a confession by a prisoner. 1 Phillips' Ev., (5 Am. Ed.) 173, 177. In the absence of any special provision of law, the practice as to the admission of evidence is the same in criminal as in civil cases. R. S. 1879, § 1907.

NORTON, J.

The defendant was tried at the September term, 1881, of the Macon county circuit court, upon an indictment charging him with murder in the first degree in killing one Thomas Morgan, and was convicted of murder in the second degree, and his punishment assessed at twenty years in the penitentiary. From this judgment defendant has appealed to this court and seeks a reversal thereof for alleged errors committed by the court in instructing the jury and in refusing to admit evidence offered by defendant.

It is insisted that the first instruction is erroneous in this, that it defines the word “premeditated” thought of for any length of time however short. The above word has been invariably defined by this court “thought of beforehand for any length of time, however short.” The important and essential word in defining premeditation is omitted by the court in said instruction. Ever since the case of State v. Wieners, 66 Mo. 20, was decided, it has been held that premeditation was a necessary element in murder of the second degree, and that there could be no murder of that degree unless the killing was premeditated. It therefore follows that it was the right of defendant to have the jury pass upon the question whether he killed the deceased premeditatedly. It also follows that to give the defendant the benefit of this right, and to enable the jury to pass upon the question, it was the duty of the court to correctly define the term. As this was not done, error was committed depriving defendant of the enjoyment of said right and leaving the jury to grope in the dark. An erroneous definition is equivalent in law to no definition, especially so in a case involving the liberty of a citizen. The error thus committed necessarily leads to a...