State v. Hudson

• Decision Date: 28 February 1875
• Citation: 59 Mo. 135
• Parties: STATE OF MISSOURI, Respondent, v. WILLIAM E. HUDSON, Appellant.
• Court: Missouri Supreme Court

59 Mo. 135

STATE OF MISSOURI, Respondent,

v.WILLIAM E. HUDSON, Appellant.

Supreme Court of Missouri.

February Term, 1875.

Appeal from Holt Circuit Court.

Thomas H. Parrish, with Bennett & Vinton, Pike, for Appellant.

I. Instruction 10 is without precedent. It assumes that the evidence proves the defendant guilty of murder, requiring the jury to find the degree only. (State vs. Smith, 53 Mo., 267; State vs. Hundley, 46 Mo., 415, 421-2; Schneer vs. Lemp, 17 Mo., 142; Fine vs. St. L. P. S. 30 Mo., 166; State vs. Cushing, 29 Mo., 215; Scroggin vs. Wilson, 13 Mo., 80; Labeaume vs. Dodier, 1 Mo. 618; Glasgow vs. Copeland, 8 Mo., 268; State vs. Packwood, 26 Mo., 363; Chappell vs. Allen, 38 Mo., 213; State vs. Ostrander, 30 Mo., 12.)

James Limbird, Pros. Atty. Holt Co., for Respondent, relied upon State vs. Schoenwald, 31 Mo., 147; State vs. Starr, 38 Mo., 270.

WAGNER, Judge, delivered the opinion of the court.

The defendant was indicted for murder in the first degree in killing one William Dougherty, and his trial resulted in conviction for murder in the second degree and he was sentenced to imprisonment in the penitentiary.

The evidence is brief and there is no conflict in it. It seems that a man by the name of Scott and the deceased were sitting upon a fence, and the defendant came out of a saloon and approached them. Scott then had some words with the defendant and told him that he was going to make a son of the deceased whip him when he got well. At this the defendant declared that “none of the d____d set” could do it. That he could whip any of them. The deceased then got off from the fence and told the defendant that he must not say that for he could not whip him.

Defendant then went down the sidewalk a short distance and had his knife opened and came back with it in his right hand, either in his pocket or holding it behind him. He then told the deceased that he had nothing against him, but if he wanted “to take it up to pitch in,” or words to that effect, and threw out his left hand towards the face of the deceased. The deceased then gave him a blow that staggered him, and followed it with another that knocked him to his knees. He then raised himself and stabbed deceased in the heart, from the effects of which wound deceased expired in two or three minutes. There was also evidence of express malice and that the act was committed to gratify a previous grudge.

This was the evidence sworn to by many witnesses who witnessed the whole difficulty.

The defendant introduced no evidence on his part.

The court of its own instance gave ten instructions, all of which were objected to by defendant.

The first instruction was a mere abstraction--unnecessary--but it could do no harm. It simply told the jury that they should find their verdict according to the directions of the court and the evidence in the case.

The second instruction informed the jury that they were the judges of the evidence and the credibility of witnesses, and might give to the testimony such weight as they might deem it was entitled to. This was also unnecessary, as no attempt was made to draw the testimony of any witness in question; but as all the evidence was given on the part of the State, its only effect was to weaken the case for the prosecution--and it was therefore favorable to the defendant.

The third merely states that the defendant is charged with killing Dougherty; and the fourth declares that the burden of proof is upon the State to prove the charge in the indictment, and that the defendant is presumed to be innocent until his guilt is proved beyond a reasonable doubt.

The fifth, seventh, eighth and ninth instructions related solely to murder in the first degree, and what was necessary to prove, to convict of that offense. They were unobjectionable and followed the law as laid down in repeated decisions of this court; but as the defendant was not convicted of murder in the first degree, to which they were only applicable, it is needless to bestow upon them any consideration.

The sixth instruction was that if the jury believed from the evidence, that the defendant did not conceive and entertain the design or intention to kill the deceased until the moment or instant of the killing; that is, if they believed that the killing was not thought of and determined upon until the fatal stroke was given, and that the defendant, at the time of giving the blow, intended to kill the deceased and did kill him, then they...