State v. Jackson

• Decision Date: 18 November 1889
• Parties: STATE v. JACKSON.
• Court: Missouri Supreme Court

12 S.W. 367

99 Mo. 60

STATE v. JACKSON.

Supreme Court of Missouri.

November 18, 1889.

MURDER — INSTRUCTIONS — VERDICT.

1. On a trial for murder, error cannot be predicated on an instruction requiring the jury to find the issues "on the evidence introduced by the state," where the other instructions require the jury to find defendant guilty upon the evidence, beyond a reasonable doubt, and tell them that if, upon a view of the whole case, they have a reasonable doubt of the guilt of defendant, they should acquit.

2. Under Rev. St. Mo. 1879, § 1234, providing that, on trial of an indictment for murder in the first degree, the jury must inquire, and by their verdict ascertain, whether the defendant be guilty in the first or second degree, a general verdict of guilty, without specifying the degree, is void. Following State v. Montgomery, 11 S. W. Rep. 1012.

Appeal from circuit court, Gasconade county; RUDOLPH HIRZEL, Judge.

Webster Jackson was indicted for the murder of Alexander McVickers, tried, and convicted of murder in the first degree. Upon appeal the verdict was set aside, and a new trial ordered. Defendant was again tried, and convicted of murder in the first degree, and again appeals. During the trial, the court, on motion of the defendant's counsel, gave, among others, the following instruction: "(10) The court instructs the jury that in this case the state attempts to convict the defendant upon circumstantial evidence, and that, before the jury can find defendant guilty, they must believe from the evidence that the facts and circumstances proved by the state are inconsistent with any other rational or reasonable theory, and if, after considering the evidence, there is a reasonable doubt in the minds of the jury as to defendant's guilt, they should give him the benefit of the doubt, and find him not guilty."

James Booth and J. C. Kiskaddon, for appellant. The Attorney General, for the State.

SHERWOOD, J.

1. This cause has been in this court before, and is reported in 95 Mo. 623, 8 S. W. Rep. 749. A change of venue having been awarded, the defendant was tried in Gasconade county, resulting in his being adjudged guilty of murder in the first degree, and sentenced accordingly. When this cause was here on a former occasion it was claimed, as it is now, that the evidence was insufficient to authorize a conviction; but, after a most patient examination of the evidence at that time, the conclusion was reached that the evidence was of such a character as to place it beyond our province to interfere. The evidence in the present record differs in no essential particular, — no particular which should have caused the triers of the fact to have returned a different verdict; and they, speaking within bounds, were the exclusive judges of the weight and probative force of the evidence. Our ruling on that point must therefore be the same as formerly announced.

2. As to the testimony of Hartley, a certain objectionable feature which it contained at the former trial, to-wit, that defendant told him that upon seeing the account of the murder, and that he was accused of it, "it wrecked his mind," etc., "so he went to stealing horses to pacify his mind," and which I regarded, and still regard, as wholly inadmissible, was eliminated from the second trial, as well as other evidence which this court held inadmissible, and consequently such evidence is not before us for our consideration; and the same line of remark is applicable to objectionable language formerly used by the prosecuting attorney.

3. The instructions given, — speaking of all of them but the tenth, which will be presently touched upon, — seem, when considered in connection with the tenth instruction, to have instructed the jury "upon all questions of law arising in the case which were necessary for their information in giving their verdict." The tenth instruction, it will be noticed, is numbered the same as one deemed erroneous by two of the members of this court, and now I am informed that three of my associates regarded the instruction as formerly given in that light; but such objections as were formerly urged against that instruction do not now apply, as those objections have been purged by the proper amendments. It is objected, however, that the present instruction, numbered 10, is faulty, in that "it required the jury to find the issues on the evidence introduced by the state, instead of all the evidence in the case." But this must be regarded as a mere verbal criticism, when attention is directed to the other instructions, which required the jury to find the defendant guilty upon the evidence, beyond a reasonable doubt, and told them that if, upon a view of the whole case, the jury had a reasonable doubt of the guilt of the defendant, they should acquit him. Besides, instruction No. 10 was especially asked for by the counsel for the defendant, as the bill of exceptions shows; so, even if there was error in it, such error was cured by reason of this action of the defendant's counsel, and by virtue of the provisions of section 1821, Rev. St. 1879, which forbid any judgment to be reversed "for any error committed at the instance, or in favor, of the defendant."

4. If the foregoing alleged errors were all the record herein contained, the judgment would have to stand affirmed; but there is a remaining point to be touched upon. The verdict in this cause was the following: "We, the jury, find the defendant guilty in manner and form as charged in the indictment. E. W. WILD, Foreman." Section 1234 of our statutes, which governs this cause, is as follows: "Upon the trial of an indictment for murder in the first degree, the jury must inquire, and by their verdict ascertain, under the instructions of the court, whether the defendant be guilty of murder of the first or second degree, and [persons convicted of murder in the first degree shall suffer death; those convicted of murder in the second degree shall be punished by imprisonment in the penitentiary not less than ten years.]" This section was amended to its present shape in 1879, from what was section 3, p. 778, Gen. St., and the brackets inclose such portion as was the original section. A section very similar in its operation to the one just quoted was section 1, p. 883, Rev. St. 1845, which reads as follows: "Upon the trial of any indictment for any offense, where by law there may be conviction of different degrees of such offense, the jury, if they convict the defendant, shall specify in their verdict of what degree of the offense they find the defendant guilty." In a subsequent revision this section was amended so as to read: "Upon the trial of any indictment for any offense, where by law there may be conviction for different degrees of such offense, the jury, if they convict the defendant of a degree of the offense inferior to the offense alleged in the indictment, shall specify in their verdict of what degree of the offense they find the defendant guilty." The section, as amended, is now section 1927, Rev. St. 1879. And upon that section, thus changed, it has been ruled that, while under the former law — the section as it stood before the amendment — it would have been necessary for the jury to have specified the degree of the offense of which the defendant was convicted, (referring to State v. Upton, 20 Mo. 397,) yet, in consequence of the...