State v. Kotovsky

• Decision Date: 31 October 1881
• Parties: THE STATE v. KOTOVSKY, Appellant.
• Court: Missouri Supreme Court

74 Mo. 247

THE STATE

v.KOTOVSKY, Appellant.

Supreme Court of Missouri.

October Term, 1881.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Price & Noland for appellant.

D. H. McIntyre, Attorney General, for the State.

HENRY, J.

At the October term, 1878, of the St. Louis criminal court, the defendant was indicted for the murder of Augusta Simon. After several continuances, one mistrial and one trial resulting in his conviction, which was set aside by the criminal court, he was finally tried at the October term, 1880, and convicted of murder in the first degree. He appealed to the St. Louis court of appeals, which affirmed the judgment, and the cause is now here on appeal from that court.

The facts of the case are that the defendant was enamored of the deceased, paid her some attention, and became jealous of the attention paid her by another, and, enraged by her refusal to accompany him to the St. Louis fair grounds, procured a pistol, three or four days before the homicide, and, on that evening, placed himself at the fence, in front of the house in which deceased was employed as a servant, and when, as was her custom in the evening, known to the defendant, she came from the house to go to a saloon near by for a pitcher of beer, in company with Anna Moody, he followed them a short distance, and sat down on the sidewalk by a fence, where he remained until the girls returned on their way home, and as they approached him, he arose, took hold of the deceased, and remarking, “Is that you, Augusta?” fired the fatal shot, pushing away Anna Moody, who was walking by her side next the fence.

The sole defense relied upon was insanity, and the complaint is that the instruction on that subject, given by the court, was erroneous, and that the court gave no instruction with regard to murder in the second degree, and incorrectly defined the term “deliberation.”

1. THE TEST OF INSANITY IN CRIMINAL CASES.

The instruction in relation to insanity was in exact conformity with what this court recently announced as the law in the State v. Redemeier, 71 Mo. 175, and yet more recently in the State v. Erb, 74 Mo. 199; and while two members of this court (Judge HOUGH and I) do not think that the only legal test of insanity is “the ability to know the right from the wrong of the particular act,” but that one knowing the right from the wrong may, in consequence of organic mental derangement, be incapable of exercising the will, and is, therefore, not amenable criminally for the act, three of our associates are of different opinion, and the judgment, therefore, cannot be reversed for this alleged error. Besides, there was no evidence tending to show that phase of insanity, but it all conduced to show a general derangement of the mind, and for that reason the instructions asked for by the defendant, and refused, were probably correctly refused, but we do not mean to express an opinion on that question.

2. DELIBERATION: premeditation.

Nor did the court err in refusing to instruct the jury in relation to murder in the second degree. If the defendant was so insane that he had not the mental capacity to deliberate, neither could he premeditate. They are of the same character of mental operations, differing only in degree. It is difficult to formulate the distinction. It is more easily illustrated than defined. Deliberation is but prolonged premeditation. In other words, in law, deliberation is premeditation, in a cool state of the blood, or, where there has been heat of passion, it is premeditation continued beyond the period within which there has been time for the blood to cool, in the given case. We are now dealing with legal definitions, and not with the nomenclature of mental philosophy. Premeditation has been defined by the Supreme Court of this State, in every capital case which has been before it for half a century, as “thought of beforehand, for any length of time, however short.” Deliberation is also premeditation, but is something more. It is not only to think of beforehand, which may be but for an instant, but the inclination to do the act is considered, weighed, pondered upon, for such a length of time after a provocation is given, as the jury may find was sufficient for the blood to cool. One in “a heat of passion” may premeditate without deliberating. Deliberation is only exercised in a “cool state of the blood,” while premeditation may be, either in that state of the blood, or in “heat of passion.”

3. MURDER: heat of passion.

Mental excitement is not “heat of passion.” “Heat of passion” is a legal phrase, to which a definite meaning has been attached, and although a homicide committed in a technical “heat of passion” was only manslaughter at common law; yet if, notwithstanding there was lawful provocation, there was time for the blood to cool before the commission of the act, the heat of passion was not a palliation, and the homicide was murder. Deliberation, as defined by this court, was not an essential element of murder at common law, but the man who in a passion, engendered by opprobrious words, or other just provocation, as contradistinguished from lawful provocation, slew the one who uttered them, at the instant, was deemed guilty of murder, although the passion engendered by the insult was as great as that produced by a blow, and yet the latter provocation reduced...