State v. Harris

Citation73 Mo. 287
PartiesTHE STATE v. HARRIS, Appellant.
Decision Date31 October 1880
CourtUnited States State Supreme Court of Missouri

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

REVERSED.

Dysart & Mitchell for appellant.

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

NORTON, J.

The defendant was indicted at the May term, 1879, of the Macon county circuit court, for murder in the first degree, for the killing of Thomas Morgan on the 28th day of May, 1879. He was put upon his trial at the January term, 1880, of said court, and convicted of murder in the second degree, and sentenced to imprisonment in the penitentiary for ten years. Motion for new trial and in arrest of judgment having been overruled, the cause is brought to this court by appeal.

The judgment in this cause must be reversed for error committed in giving for the State the eleventh instruction defining murder in the second degree. Upon a retrial this instruction should be made to conform to the opinion of this court in the case of State v. Curtis, 70 Mo. 594.

If upon such trial the evidence tends to show a conspiracy between deceased and Morris to kill defendant, and that in pursuance of such design deceased and Morris were acting together and in concert when Morris drew his pistol, the third instruction on behalf of the State should be modified so as to meet such evidence; in the absence of such evidence, the instruction is proper as given.

The evidence offered to prove statements made by defendant as to his having had a previous difficulty with his brother and lying in wait to kill him, was improperly received. It had no connection with the crime for which defendant was on trial. State v. Elkins, 63 Mo. 159.

The above case lays down the rule as to the admissibility of threats made and not communicated, which applies with more force in a case where such threats are communicated. When the evidence clearly shows that at the time of the homicide the party slain made no attempt to execute a threat previously made, and did not seek the difficulty resulting in his death, and that the accused was the aggressor, sought the difficulty and brought it on, such threat would constitute no excuse or justification for the homicide, and the refusal to receive evidence as to such threat would not be error; but it is otherwise when, at the time of the killing, deceased sought the difficulty or did any act or said anything which indicated a purpose on his part to execute such threat.

The objection to the action of the court in ordering...

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39 cases
  • The State v. Douglas
    • United States
    • United States State Supreme Court of Missouri
    • January 6, 1926
    ...... even though the defense may be adequately covered in a. separate instruction. State v. Gabriel, 256 S.W. 765; State v. Helton, 234 Mo. 559; State v. Pate, 268 Mo. 431; State v. Davies, 217 S.W. 87; State v. Schmulbach, 243 Mo. 533; State v. Harris, 232 Mo. 317. (6) An instruction which singles. out certain evidence and calls special attention to it, is. bad as a comment on the evidence and is erroneous. State. v. Mallock, 269 Mo. 235; State v. Rutherford, . 152 Mo. 124; State v. Pate, 268 Mo. 431; State. v. Lewis, 264 Mo. 420; ......
  • State v. McClure
    • United States
    • United States State Supreme Court of Missouri
    • September 3, 1930
    ...... was highly prejudicial to appellant. State v. Shebe. (Mo.), 268 S.W. 81; State v. Dixon (Mo.), 253. S.W. 1068; State v. Mo. Pac., 219 Mo. 156; State. v. Taylor, 136 Mo. 66; State v. Burlingame, 146. Mo. 208; State v. Owens, 85 Mo. 194; State v. Harris, 73 Mo. 287; State v. Reavis, 71 Mo. 419. (12) It was error to permit the prosecuting attorney. over the objections and exceptions of appellant to. interrogate him as to why he did not credit certain notes. with rent acquired from farm land owned by the bank, creating. the inference that ......
  • State v. McClure, 29560.
    • United States
    • United States State Supreme Court of Missouri
    • September 3, 1930
    ...1068; State v. Mo. Pac., 219 Mo. 156; State v. Taylor, 136 Mo. 66; State v. Burlingame, 146 Mo. 208; State v. Owens, 85 Mo. 194; State v. Harris, 73 Mo. 287; State v. Reavis, 71 Mo. 419. (12) It was error to permit the prosecuting attorney over the objections and exceptions of appellant to ......
  • State v. Hannebrink
    • United States
    • United States State Supreme Court of Missouri
    • December 1, 1931
    ......124; State v. Cole, 213. S.W. 110; Kelly's Cr. L. & Prac. (3 Ed.) sec. 391. (6). Instruction 2 assumed a weapon was used, a controverted. issue. It also permitted the jury to convict if the defendant. struck Davis on the "body" and submitted matters. outside the evidence. State v. Harris, 209 Mo. 438;. State v. Grant, 152 Mo. 57; State v. Hall,. 7 S.W.2d 1006; State v. Hersh, 296 S.W. 433;. State v. Little, 67 Mo. 624; State v. Samuels, 144 Mo. 68. It did not define or tell the jury. how to determine what was a dangerous and deadly weapon. State v. Harris, supra. (7) Asking ......
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