State v. Jones

• Decision Date: 30 April 1883
• Parties: THE STATE v. JONES, Appellant.
• Court: Missouri Supreme Court

78 Mo. 278

THE STATE

v.JONES, Appellant.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Randolph Circuit Court.--HON. G. H. BURCKHARTT, Judge.

AFFIRMED.

On behalf of the State, it was testified that defendant, having both hands in his sack-coat pockets, stepped out of a drug store and walked rapidly toward the deceased, who was walking very slowly, holding a tobacco stick in his left hand and his right in his pantaloons pocket. When they reached each other and had stopped, deceased was leaning on the tobacco stick and had his right hand in his pantaloons pocket. Defendant said something to deceased, and thereupon shot through his coat pocket. Deceased then jerked his hand out and clutched defendant, who told him to let him loose or he would shoot him through the head again. Deceased called on a witness to come and help him. Defendant told the witness not to come any nearer. Defendant's coat pocket was on fire. After deceased fell, defendant said, “Damn you, you won't bother me any more.” Defendant was then appealed to by a witness to come and help the deceased, but looked hard at the witness and said nothing. A loaded pistol was taken from deceased's hind pocket after he was shot. One witness testified that ten or twelve days before the shooting, defendant had related a conversation between himself and another, in which he reported himself as saying, in reply to the other person informing him that there was some talk about defendant's wife and deceased, that, if it was true, deceased would have to smell gunpowder, and, if it was not true, some others would have to smell gunpowder. After the shooting defendant said to the justice of the peace that he was not going to run away, showed no disposition to run off, and came before the justice when sent for. On the way to jail, defendant, when asked why he had killed deceased, replied that he had stood it as long as he could, and would have killed deceased long ago but did not want his blood on his hands.

On behalf of defendant it was testified that deceased said he did not want to take defendant's blood, nor did he want defendant to take his blood, and that these statements had been repeated to defendant. Defendant's general reputation for peace and quietness was proven to be good. Deceased said the day before the killing that he had been criminally intimate with defendant's wife. Defendant, himself, testified that on the morning of the killing, his wife, for the first time, admitted her criminal intimacy with deceased, and handed him a bottle, saying that she thought that was the medicine which gave deceased (who was defendant's family physician) his influence over her. The bottle was produced and identified, and a physician testified that from is taste and smell he believed it to be a diluted tincture of cantharides or Spanish flies. Defendant told his wife he could live no longer with her; that he would see deceased, who perhaps would furnish her with the means to take her to her father in Kentucky; that it was nothing more than just that he should do so; that he went to see deceased for this purpose, and knowing that he had a pistol, took one along himself for his protection, and fired in the interview when he saw deceased withdrawing his hand from his pocket.

The State prayed and the court gave the following instructions:

1. If the jury believe from the evidence, beyond a reasonable doubt, that the defendant, at the time and place charged in the indictment, with a pistol, willfully, deliberately, premeditatedly and of his malice aforethought, shot and killed Samuel H. Blair, then they must find him guilty of murder in the first degree, and so state in their verdict and nothing more.

2. If the jury believe from the evidence, beyond a reasonable doubt, that the defendant, at the time and place charged in the indictment, with a pistol, willfully, premeditatedly and of his malice aforethough, (but without deliberation, that is, in a heated state of passion,) shot and killed Samuel H. Blair, then they should find him guilty of murder in the second degree, and assess his punishment at imprisonment in the penitentiary for a term not less than ten years.

3. The word willful, as used in the indictment and in these instructions, means intentionally, that is, not accidentally; deliberately means in a cool state of the blood, that is, not in the heat of passion; premeditated means thought of beforehand for any length of time however short; malice in the instructions does not mean hatred or ill-will, as it commonly does, but it means the intentional doing of a wrongful act; heat of passion, as used in these instructions, means a condition of quick anger or sudden injury, engendered by a real or supposed grievance suffered at the time, and in order to reduce the crime from murder in the first to murder in the second degree, the killing must be done upon the instant the provocation is given, before the blood has had time to cool and reason to resume its sway, before the mind has time to consider the character and gravity of the act about to be done, and not from hatred or for pre-existing revenge.

4. If the jury believe from the evidence that the defendant, with a pistol, willfully shot and killed the deceased, as charged in the indictment, then, before such killing can be justified on the ground of self-defense, it must appear to the reasonable satisfaction of the jury from the whole of the evidence that the defendant, at the time of shooting, had reasonable cause to believe, and did believe that the deceased was about then to kill him, (the defendant,) or do him some great bodily harm; and that defendant had reasonable cause to believe, and did believe that there was immediate danger of such design on the part of deceased being accomplished; and that defendant did shoot and kill deceased to prevent such immediate harm to himself, and not to gratify a grudge.

5. If the jury believe from the evidence that defendant sought the deceased and provoked or brought on the difficulty which resulted in the death of the deceased by any unlawful act of his committed at the time, or that defendant, voluntarily and of his own free-will, entered into the difficulty, then there is no self-defense in the case, and the jury cannot acquit on that ground; and in such case it makes no difference how imminent the defendant's real or apparent peril may have become during the conflict. If the jury believe from the evidence that Dr. Blair had reasonable cause to believe that defendant was about to kill him or do him great bodily harm, then Blair had the right to arm and defend himself, and if the jury further find from the evidence that defendant, after being informed of the fact that Blair was afraid for his life and had armed himself, voluntarily went to meet Blair and by menacing conversation or conduct alarmed Blair and gave him reasonable cause to believe that he (defendan...