State v. Henson

• Citation: 16 S.W. 285,106 Mo. 66
• Parties: The State v. Henson, Appellant
• Decision Date: 19 May 1891
• Court: Missouri Supreme Court

16 S.W. 285

106 Mo. 66

The State v. Henson, Appellant

Supreme Court of Missouri, Second Division

May 19, 1891

Appeal from the St. Louis Criminal Court. -- Hon. J. C. Normile Judge.

Affirmed.

Dodge & Mulvihill and L. A. McGinnis for appellant.

(1) The court erred in not fully instructing the jury on the law as applicable to the case. State v. Palmer, 88 Mo. 568; State v. Barham, 82 Mo. 67; State v. Banks, 73 Mo. 592. (2) First. The court should have instructed the jury upon murder in the second decree. Second. The court should have instructed the jury upon manslaughter in the fourth degree. Kerr, Homicide, sec. 523, p. 575; State v Young, 99 Mo. 666. (3) When there is any evidence whatever, which, if believed, will reduce the crime to murder in the second degree, even though it be given by the defendant himself, he is entitled to an instruction upon the law of murder in the second degree. Kerr on Homicide, sec 525, p. 576; State v. Banks, 73 Mo. 592; People v. Kelly, 35 Hun (N. Y.) 295; State v. Edwards, 70 Mo. 480; State v. Murphy, 14 Mo.App. 73; State v. Kelly, 16 Mo.App. 213; State v. Branstetter, 65 Mo. 149. (4) When defendant testified he did not intend to kill the deceased, he is entitled to an instruction for a lower grade of homicide than murder in the first or second degree. There was absolutely no motive for the killing. State v. Palmer, 88 Mo. 568; State v. Partlow, 90 Mo. 608; State v. Williams, 95 Mo. 247. As to manslaughter in the fourth degree. State v. Emery, 78 Mo. 77. (5) The first instruction given by the court was clearly error in defining the word "deliberately." There was also error in this instruction in the court declaring "that no testimony disclosed any legal justification or provocation for the killing charged," as there was afterwards an instruction as to accidental killing, and the court should have instructed upon manslaughter in the fourth degree. State v. Weiners, 66 Mo. 13; State v. McNally, 87 Mo. 644; State v. Stephens, 96 Mo. 637. (6) Instruction, numbered 3, was erroneous. Kerr on Homicide, sec. 532, p. 582; State v. Herrell, 97 Mo. 105. (7) Instruction, numbered 5, as to "belief of the defendant in regard to the unfaithfulness of his wife," was clearly error in that it introduced into the case an unwarranted element, and tended to mislead the jury. Instruction, numbered 6, as to the intoxication of the defendant, was clearly error for the same reason. There was no evidence introduced to found either of these instructions upon. State v. Palmer, supra; Thompson on Charging the Jury, 1880, secs. 69, 71, 72. (8) The action of the circuit attorney in reading to the jury in his closing address from the stenographer's transcript, which was not introduced in evidence, and which was objected to by defendant, was reversible error. State v. Lee, 66 Mo. 165; State v. Barham, 82 Mo. 67.

John W. Wood, Attorney General, and A. C. Clover, Circuit Attorney, for the State.

(1) The instruction defining murder in the first degree has received the repeated sanction of this court. State v. Talbott, 73 Mo. 347; State v. Thomas, 78 Mo. 327; State v. Dickson, 78 Mo. 438; State v. Van Sant, 80 Mo. 67; State v. Gee, 85 Mo. 647. (2) The words constituting the elements of the crime charged are correctly defined. State v. Thomas, supra; State v. Gee, supra; State v. Dickson, supra; State v. Tatbott, supra. First. The definition of deliberation has received the approval of this court. State v. Ellis, 74 Mo. 220, and cases cited as above. Second. An erroneous definition of deliberation would be harmless in this case, as there was no evidence of a just or lawful provocation. State v. Talbott, 73 Mo. 347; State v. Sneed, 91 Mo. 559; State v. Ellis, 74 Mo. 220. Third. Where there is no evidence of a lawful or just provocation the jury should be instructed to that effect. State v. Sneed, 91 Mo. 559; State v. Ellis, 74 Mo. 220; State v. Landgraf, 95 Mo. 37. (3) The evidence discloses but one grade of homicide, murder in the first degree; the theory of the defense was an accidental killing, and it would have been an injustice to the defendant to have instructed on any of the lower grades of homicide. First. It is error for courts to instruct for murder in the second degree, when the evidence does not warrant it. State v. Nelson, 88 Mo. 126; State v. Stoeckli, 71 Mo. 559; State v. Mahley, 68 Mo. 315; State v. Hopper, 71 Mo. 425. Second. The state established more than the mere guilty agency of the accused in causing the death of the deceased, and it will not be presumed, therefore, that the crime was murder in the second degree. State v. Anderson, 98 Mo. 461. Third. The evidence did not show any culpable negligence on the part of the defendant, and the court could not, therefore, instruct for manslaughter. (4) Defendant's counsel have either not fully read, or have misunderstood, the instruction which they designate as number 3; according to the decisions of this court it is unobjectionable. State v. Talbott, 73 Mo. 347; State v. Thomas, 78 Mo. 327; State v. Dickson, 78 Mo. 440; State v. Tabor, 95 Mo. 585. The instruction has also received the approval of this court over the same objection now urged by counsel. State v. Anderson, 98 Mo. 461. (5) The defendant stated on the way to the police station that jealousy and drink had caused him to kill his wife. First. Drunkenness is no excuse for the commission of crime. State v. Snell, 78 Mo. 240; State v. Ramsey, 82 Mo. 133; State v. Sneed, 88 Mo. 138; State v. Lowe, 93 Mo. 547. Second. He that kills his wife through jealousy, or from a belief in her infidelity, is guilty of murder in the first degree unless he detects her in the adulterous act. State v. Anderson, 98 Mo. 461; State v. France, 76 Mo. 681. Third. If defendant had made the statement, the giving of the instructions would have been harmless error; his defense was not based on jealousy or intoxication, and the instructions would have been simply legal abstractions, and, therefore, not prejudicial to the defendant. State v. Snell, 78 Mo. 240. (6) The charges of misconduct on the part of the circuit attorney, and of concealment of the truth by a juror, are not supported by affidavits, and consequently will not be considered by this court. Loyd v. Railroad, 53 Mo. 509; State v. Morgan, 1 Mo.App. 22; State ex rel. v. Claudius, 1 Mo.App. 562; Cobb v. State, 27 Ga. 648; State v. Carter, 98 Mo. 176; State v. Hays, 81 Mo. 574. This case should be affirmed on the authority of State v. Jewell, 90 Mo. 467.

OPINION

Thomas, J.

The defendant shot and killed his wife at number 405 South Second street in the city of St. Louis on the fourth day of February, 1889. In January, 1890, he was tried for this homicide in the criminal court of that city, and was found guilty of murder of the first degree, and sentenced to death. The case is now here by appeal.

The instructions of the court confined the jury to a conviction of murder of the first degree and an acquittal on the ground that the homicide was accidental. Defendant contends that the court ought to have authorized, by its instructions, a conviction of murder of the second degree and manslaughter of the fourth degree, and this contention raises the only question for our determination. The instructions given, it is true, are criticized somewhat, but after a careful examination of them, we find they are couched in language that has been often approved by this court on the subject of murder of the first degree.

Did the court commit error in failing to instruct the jury in regard to a lower grade of homicide than murder of the first degree? It is now the settled law in this state that it is the duty of the court to instruct the jury "upon all questions of law arising in the case," whether asked to do so or not. State v. Palmer, 88 Mo. 568; State v. Barham, 82 Mo. 67. Let us see if the evidence justified the contention that instructions for a lower grade of homicide ought to have been given. The defendant and his stepson, Gus Kreitling, were the only eye witnesses of the tragedy. The latter, who was a son of the deceased, testifies that defendant and deceased were "fussing" about one of the boarders, deceased saying that it was none of his business; whereupon defendant retorted, "Shut up;" then defendant drew a revolver from his pocket and held it to her temple, whereupon witness ran between them and induced him to put the pistol away. The defendant again said to deceased if she did not shut up he would blow her brains out. The defendant again drew the pistol and held it to her head, whereupon witness again induced him to put it up. Defendant again spoke to deceased, and a reply was made, when the defendant held the pistol to her head and discharged it, the deceased falling to the floor. Witness saw defendant fire the pistol at her head.

On cross-examination witness says he came home about 9:15 and found defendant and deceased "fussing," which continued up to the time she was shot, deceased saying to defendant, "You would not shoot a fly."

"Q. Was that all she said? A. Well, she said a few words more, I don't remember them."

Defendant testified that deceased, he and others were celebrating her birthday. About 9:15 the boy, Kreitling, came in; about ten P. M. defendant went to the front door and heard two girls screaming and ran up Spruce street. He told Taylor, a boarder, he had better leave those girls alone, and if he could not quit using that language he could get another house. Taylor then left. Deceased then said to defendant "What is the reason Taylor left?" Defendant replied: "I told him not to interfere with those girls. I do not want the police around my house, and to mind his own business." The boy, Gus Kreitling, went out. Then defendant went in the little room...