State v. Kinder

• Decision Date: 22 November 1904
• Citation: 83 S.W. 964,184 Mo. 276
• Parties: THE STATE v. ABSALOM KINDER, Appellant
• Court: Missouri Supreme Court

83 S.W. 964

184 Mo. 276

THE STATE v. ABSALOM KINDER, Appellant

Supreme Court of Missouri, Second Division

November 22, 1904

Appeal from Cape Girardeau Circuit Court. -- Hon. Henry C. Riley Judge.

Affirmed.

William H. Miller and Wilson Cramer for appellant.

(1) There is no evidence in the cause to justify the giving of an instruction for murder in the second degree, and the court erred in instructing the jury upon that grade of homicide. (2) Instruction 2 is erroneous in that it fails to tell the jury that the striking with the club must have been upon a vital part, in order to raise the presumption that defendant intended the natural and probable consequences of the striking. (3) Said instruction 2 is erroneous because it ignores the element of an attempt to kill, which is necessary to constitute murder in the second degree. (4) The court erred in giving instruction 3 declaring that, in order to convict of murder in the first degree, the jury must find "that defendant not only struck the deceased, Arthur Kinder, with a deadly weapon upon a vital part intentionally but that he struck the blow intending to kill him" -- thus emphasizing the necessity of an intent to kill in murder in the first and by necessary and natural inference excluding such intent in murder in the second degree. (5) The undisputed proof shows that when defendant struck the first lick the deceased was in the act of approaching upon him, and the court erred in giving instruction 4 and assuming that defendant struck "while in a violent passion suddenly aroused by insulting and abusive words spoken to him by deceased." There is no evidence upon which to base this instruction which naturally obscures defendant's plea of self-defense. (6) The court, while using in said instruction the term "violent passion," failed to define the meaning thereof. (7) The verdict is not supported by the evidence, but is evidently the result of passion and prejudice, and the court erred in refusing to set the same aside.

Edward C. Crow, Attorney-General, and C. D. Corum for the State.

(1) We think the evidence sufficient to warrant the court in instructing for murder in the second degree. While it is true that the language of the deceased was not such as usually transpires in cases of this character, yet it was sufficiently positive and of such character as to arouse the ire of the defendant; and that it had this effect is manifest from the language used by the defendant. Even though the language was not abusive, it was of such a nature as to arouse the passion of the defendant, and evidently insulted him. It was a question for the jury whether the language and conduct of the deceased was of such a character as to deprive the defendant of the power of deliberation. (2) There is no issue between counsel and us, as to the law, that, in order to constitute murder in the second degree, there must be an intent to kill. But it has long been the law in this State that the law presumes murder in the second degree from the simple act of killing. He who uses upon another, at some vital part, a deadly weapon, as in this case, in the absence of qualifying facts, must be presumed to know that the blow is likely to kill, and knowing this, must be presumed to intend death, which is the probable and ordinary consequence of such an act. State v. Holm, 54 Mo. 153; State v. Gassert, 65 Mo. 325; State v. Bauerle, 145 Mo. 23. (3) Instruction number two, defining murder in the second degree, is attacked on the ground that it ignores the element of an intent to kill. It follows the formula that has been frequently observed by this court. State v Wilson, 98 Mo. 448; State v. Elliott, 98 Mo. 150; State v. Bauerle, 145 Mo. 18; State v. Hyland, 144 Mo. 311. Under this instruction, before the defendant could be convicted it was necessary for the jury to find that the defendant willfully struck the deceased. If this instruction were to be considered alone, and without regard to the other instructions, it probably could not be upheld. But the instructions bearing upon the offense must be read together. And if they all present the law, when thus considered, that is all that is necessary. Of course, the jury must find that there existed in the mind of the defendant, at the time of the homicide, an intent to kill, and while the instruction under consideration did not, in terms, tell the jury that such an intent was necessary, it did tell the jury that "if they believed from the evidence that the defendant willfully," etc., then they should find him guilty. The word "willful" was correctly defined by the court in the seventh instruction, and the words "malice" and "malice afore-thought" were also correctly defined. If, then, the word "willfully" means intentionally, and the word word "malice" means a wrongful act done intentionally, without just cause or excuse, and the words "malice aforethought" mean that the act was done with malice and premeditation, as these words were defined by the court, then the court advised the jury that before they could convict the defendant of murder in the second degree, they must find that he killed the deceased intentionally and wrongfully. This was all that the law requires. State v. Smith, 164 Mo. 586. (4) We do not think that instruction 4 assumes that the defendant struck the blow while in a violent passion, suddenly aroused by insulting words. It told the jury that if they believed and found from the evidence that he was in a violentpassion, suddenly aroused, etc. There was no assumption in this. Orscheln v. Scott, 79 Mo.App. 534. (5) It was unnecessary for the court to define the term "violent passion," as the defendant was found guilty only of murder in the second degree. State v. Moore, 156 Mo. 212. But we think that the court did define the term, "violent passion," when it used this language: "But although the defendant may have struck the blow, while in a violent passion, suddenly aroused by insulting and abusive words, spoken to him by the deceased." No further definition was necessary. State v. Rose, 142 Mo. 429. It was unnecessary to define the term "violent passion;" but if necessary, the defendant, in order to have availed himself of that, should have called the attention of the trial court to its failure in this regard before the case was submitted to the jury, and have excepted on the ground that the court had failed to instruct on all the law in the case. State v. Cantlin, 118 Mo. 100; State v. Paxton, 126 Mo. 500; State v. Woods, 137 Mo. 6; State v. Rose, 142 Mo. 429.

FOX, J. Gantt, P. J., concurs; Burgess, J., absent.

OPINION

FOX, J.

This case comes to this court by appeal from a conviction of murder of the second degree.

The defendant and appellant in this cause was charged by indictment, duly presented by the grand jury in Cape Girardeau county, Missouri, with murder of the first degree. The instrument charged to have been used in the commission of the offense was a large club, a piece of a fence rail, four feet long, four inches broad and two inches thick. There is no complaint by counsel for appellant urged against the indictment; it is in harmony with the approved forms, hence no necessity for reproducing it here. There was a trial upon this indictment, defendant was found guilty of murder in the second degree, and his punishment assessed at imprisonment in the penitentiary for a term of ten years.

The record in this cause indicates that there were only three persons present at the difficulty; the defendant, the deceased, and one Luther Eakins. As to what occurred at the time and place of the killing, two witnesses testify, Luther Eakins for the State, and the defendant for himself. It is apparent from the record before us that the relations between the defendant and the deceased were not of the most cordial nature, notwithstanding they were cousins. We can more fully appreciate the main facts upon which this case was submitted to the jury by reproducing the statements of the only two living witnesses present at the difficulty:

Witness Luther Eakin testified as follows:

"Q. Now, you may tell the jury if there was any trouble between Arthur Kinder and the defendant, you may tell them what it was, how it came up? A. Well, sir, we, me and Arthur Kinder had hauled off a lot of wheat that morning, Friday morning, and we went by his lower farm to get a load of pumpkins, and started back, and in there by George Gross's in the Schlueter lane we met Ab Kinder; well, sir, he drove to the side of the road and stopped. When Arthur came up he spoke to Ab; he says, 'Hi Ab,' and Ab says, 'Kiss my --'; well, what Arthur said I didn't understand much. Ab then commenced; Ab he reached in his pocket and got his knife, and jumped out of his wagon and run around to Arthur's front wheel, went clear around his team to his right front wheel, and he says, 'Now, God damn you, if you want anything out of me just get out.' Arthur says, 'Put up your knife in your pocket Ab, I will fight you a fair fight.' He says, 'I will put my knife in my pocket when I get God damned good and ready,' then he put his knife in his pocket and picked up a two-foot piece of rail, about two feet long. He says, 'You have been running about with your God damned lies long enough;' he says, 'You told it about that I killed myself.' Arthur says, 'I didn't do any such a thing, I can face the one that said that.' Ab says, 'You told it.' Arthur asked him who it was; he told him who it was; it was one of the Rhodeses, I didn't understand the first name. Then he throwed that club down and he picked up this here one that he hit him with, about five feet long, and Arthur says, 'I know what is the matter with you Ab;' he says, 'You are mad because you thought I helped George Kinder beat you out...