State v. Hill

• Decision Date: 30 April 1879
• Citation: 69 Mo. 451
• Parties: THE STATE v. HILL, Appellant.
• Court: Missouri Supreme Court

69 Mo. 451

THE STATE

v.HILL, Appellant.

Supreme Court of Missouri.

April Term, 1879.

Appeal from Pike Circuit Court.--HON. G. PORTER, Judge.

D. A. Ball and M. G. Reynolds for appellant.

J. L. Smith, Attorney-General, and Champ Clark for the State.

HENRY, J.

At the September adjourned term 1878, of the circuit court of Pike county, the defendant was indicted for the murder of James Johnson on the 15th day of September, 1878. At the ensuing March term of said court he was tried, found guilty of murder in the first degree, and sentenced to be hanged. From the judgment he has appealed to this court.

1. MURDER IN THE SECOND DEGREE.

The first instruction defined murder in the first degree, but no instruction was given properly defining murder of the second degree. The fifth instruction for the State was as follows: “If the jury believe from the evidence that defendant wrongfully killed James Johnson with malice aforethought, but without deliberation, in the heat of passion, they will find him guilty of murder in the second degree.” This required the jury, before they could reduce the crime from murder of the first, to murder of the second degree, to find that the killing was done in a heat of passion, and is in direct conflict with what was held to be the law on this subject in the State v. Wieners, 66 Mo. 13. There was evidence of an altercation between the parties, of previous threats made by deceased against the life of the defendant, and of grossly insulting and opprobrious epithets applied by him to defendant, immediately preceding the killing, which, although not sufficient to produce technical heat of passion, were circumstances which the jury, nevertheless, should have been permitted to consider in determining whether, if murder, it was committed with deliberation.

2. MURDER IN THE FIRST DEGREE: instructions.

The third instruction for the State was also erroneous. It was as follows: “If you find that the defendant did willfully draw a pistol and shoot and kill James Johnson simply because said Johnson used words of reproach towards him, and that he thought of the killing any length of time, however short, before he shot Johnson, the offense is murder in the first degree.” This instruction declares a willful killing to be murder in the first degree, ignores the element of deliberation, and is, therefore, in conflict with what we held in the State v. Wieners, supra; The State v. Mitchell, 64 Mo. 192, and cases there cited. The fact that an instruction was given by the court, properly defining murder in the first degree, did not cure the error in the third instruction. The State v. Mitchell, supra; The State v. Dearing, 65 Mo. 532.

The second instruction was calculated to mislead the jury. It declared that: “Provocation, to be sufficient to mitigate or extenuate homicide, as applicable to this case, should amount to personal violence or injury to the defendant. Mere words of reproach, how abusive or grievous soever they may be, are no provocation sufficient to free the party killing from the guilt of murder.” The first clause of the instruction declares that no provocation will mitigate or extenuate a homicide,...