State v. Jewell
| Decision Date | 31 January 1887 |
| Parties | The State v. Jewell, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis Criminal Court. -- Hon. G. S. Van Wagoner Judge.
Affirmed.
Albert Burgess for appellant.
B. G Boone, Attorney General, for the state.
A careful examination of the testimony discloses no error that will justify a reversal. The first instruction properly defines murder in the first degree. State v. Snell, 78 Mo. 240; State v. Thomas, 78 Mo. 327; State v. Wisdom, 84 Mo. 177. The second correctly defines the words constituting the elements of the crime charged. State v. Weiners, 66 Mo. 13; State v Banks, 73 Mo. 592; State v. Kotovsky, 74 Mo. 247; State v. Snell, supra. The third tells the jury that if the crime committed had all the elements defined in the foregoing instruction, they will find defendant guilty as charged, and if not, they will not find him guilty of murder in the first degree. The fourth tells the jury that if they believe from the evidence that the killing was accidental, they will acquit defendant. The fifth is the usual instruction as to the credibility of witnesses. State v. Thomas, supra; State v. Vansant, 80 Mo. 71. The sixth is as to the credibility of defendant's testimony. State v. McGuire, 69 Mo. 197; State v. Zorn, 71 Mo. 415; State v. McGinnis, 76 Mo. 328; State v. Cook, 84 Mo. 40; State v. Wisdom, 84 Mo. 177. The seventh is as to the presumption of innocence in defendant's favor, and defining a reasonable doubt. These instructions were all that the court was authorized in giving under the evidence. Defendant's averment, in his motion for a new trial, that he has discovered new and material evidence since the trial of the cause, which would warrant a new hearing, is supported by nothing, and as the trial court overruled the motion, it is presumed that such new material and important evidence was not shown to exist, and this court will not reverse. Another ground in said motion is, that the court compelled the defendant to be represented by objectionable counsel, and his (defendant's) rights were thereby prejudiced. Appellate courts will not review the actions of the officers of trial courts upon unsupported allegations in motions for new trials. Such charges should be well established to entitle them to consideration. Hilliard on New Trials, p. 225, sec. 40; Lloyd v. Railroad, 53 Mo. 509; State v. Morgan, 1 Mo.App. 22; State ex rel v. Claudius, 1 Mo.App. 551; Cobb v. State, 27 Ga. 648.
Defendant was indicted in the criminal court of St. Louis, at the May term, 1885, for murder in the first degree, for killing his wife, Eliza Jewell, and upon a trial at the October term, was convicted of that offence. The defendant shot his said wife, on December 30, 1884, the bullet entering the face, under the right eye, and penetrating to the back and lower part of the head. The wound was not immediately fatal, but produced, as the medical testimony shows, a "dilatation, or aneurism of the coats, or walls of the internal carotid artery," which continued to grow and push out into the throat, and to threaten to rupture, and give way at any moment. About the middle of April, and when death was deemed inevitable, a surgical operation was undertaken, as a possible chance of saving her life; but this was unsuccessful, and death ensued about the last of the month, resulting, as the evidence shows, from the gun shot wound aforesaid. The defendant, who was about twenty-two years of age, had been married to his wife, who was only seventeen years old, about one year prior to the time the shooting occurred. The evidence shows that they did not get on well together; that defendant, on several occasions, threatened to kill his wife, and that on one of these, he struck at her with a knife, cutting her clothing, but doing her no injury at the time. At the time of this trouble, defendant had a room rented in the house of his wife's father and mother, but his wife was not living with him at the time, having left him and gone out to work, a week or more prior to this difficulty. The night before the shooting was done, the wife returned to her mother's, and the difficulty took place in the room used as the dining room, about noon of the day following, on the said thirtieth day of December, 1884. There were present in the room at the time, defendant and his wife, Eliza, Mrs. Drummond, who was the wife's mother, and a younger sister of the wife's, named Annie, and of these, the only witnesses of the immediate transaction, Mrs. Drummond and the daughter, Annie, were sworn in behalf of the state, and the defendant in his own behalf.
The testimony of the wife's said sister and mother, as to the immediate facts and circumstances of the shooting, is, in substance, the same, and about as follows: That when defendant met his wife there in the morning, he insisted she should live with him again, which she refused to do; that he went away and returned several times, perhaps, in the course of the forenoon, and that, in one of these parleys he told her that if she would not live with him, she should not live; that he came in, the last time, about noon, with his hands in his overcoat pocket, and was standing in front of the mantel piece, when his wife, Eliza, walked up to him and asked him, "Dan, what are you going to do with that pistol;" that he replied, "I haven't any pistol;" that she then slapped her hand on his overcoat pocket, and said, "Aha, I knew you had that pistol," and turned away from him to the machine; that defendant then said, walking up to her, "I aint going to do anything to you, I tell you my word is my bond;" that she leaned her back against the sewing machine, and turned to him and said: "You can't fool me," and as she said this, or immediately thereafter, he pulled the pistol and shot her. After the shooting, defendant, with the pistol in his hand, ran out, back through the alley, at the end of which he was met by the witness, Robinson, who had heard the report of the pistol, and who seized the defendant and held him until the officer came up and took the pistol out of his hand and arrested him.
The defendant was the only witness in his own behalf, and his statement and claim...
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