State v. Lane

• Court: Missouri Supreme Court
• Writing for the Court: NORTON
• Citation: State v. Lane, 64 Mo. 319 (Mo. 1876)
• Decision Date: 31 October 1876
• Parties: STATE OF MISSOURI, Respondent, v. JEPHTHA LANE, Appellant.

64 Mo. 319

STATE OF MISSOURI, Respondent,

v.JEPHTHA LANE, Appellant.

Supreme Court of Missouri.

October Term, 1876.

Appeal from Bates County Circuit Court.

C. C. Bassett, for Appellant, cited: State vs. Phillips, 24 Mo. 475; State vs. Starr, 38 Mo. 270; State vs. Harris, 59 Mo. 550.

J. L. Smith, Att'y Gen'l, for Respondent, cited: State vs. Schoenwald, 31 Mo. 157; State vs. Philips, 24 Mo. 486; State vs. Sloan, 47 Mo. 615; State vs. Underwood, 57 Mo. 49; State vs. Starr, 38 Mo. 270; State vs. Holme, 54 Mo. 53; State vs. Joeckel, 44 Mo. 236; State vs. Stockton, 61 Mo. 383; State vs. Harris, 59 Mo. 550; State vs. O'Connor, 31 Mo. 389.NORTON, Judge, delivered the opinion of the court.

The defendant was indicted in the circuit court of Bates county at its July term, 1876, for murder in the first degree, in killing one John W. Morton.

He was tried at the November term of said court and convicted of murder in the second degree and his punishment assessed at ten years imprisonment in the penitentiary.

Exceptions were duly taken to the action of the court in overruling a motion for a new trial, and an appeal was prayed for and allowed to this court.

The only point presented for our consideration is as to the action of the trial court in giving and refusing instructions; and as those given by the court relating to murder in the first and second degrees are especially complained of we copy them herein. They are as follows,

1. “Murder in the first degree as charged in this indictment consists in wilful, deliberate and premeditated killing with malice aforethought. Malice to constitute murder in the first degree consists in the actual and deliberate intention unlawfully to take the life of another.

There must be an actual intention to kill, and if such intention exists it is wilful. If such intention is accompanied by such circumstances as evidence a mind fully conscious of its own purpose and designs it is deliberate, and if sufficient time is afforded to enable the mind fully to frame the design, select the instrument by which death is accomplished or to frame the place to carry this design into execution, it is premeditated.

He who uses a deadly weapon by which death is produced with a manifest design so to use it, with sufficient time to deliberate and fully to form a conscious purpose of killing, and without reasonable cause to apprehend immediate personal violence to himself, is guilty of murder in the first degree. And if the jury are satisfied and find from the evidence that the said John W. Morton was in said Bates county, shot and killed, and that defendant wilfully, deliberately, premeditatedly and with malice aforethought, as these terms are before defined, committed said acts of shooting and killing, then he is guilty of murder in the first degree. The law fixes on no length of time to form this intention to kill, but leaves the existence of a fully formed intent as a fact to be determined by the jury from all the facts and circumstances in evidence.

If the defendant had time to think and did intend to kill for a moment as well as for an hour or day, then the killing is a wilful, deliberate and premeditated killing, and when the act is committed wilfully and deliberately, with the means and instruments calculated to produce death, then the malice requisite to murder will be presumed, unless defendant had reasonable cause to apprehend a design on the part of the deceased to do him some great personal injury, and there was reasonable cause to apprehend immediate danger of such design being accomplished without the fault of defendant.

2. Murder is in either the first or second degree. To constitute murder in the first degree, the act which produced the death must be wilful, deliberate, and premeditated, and to constitute murder in either degree the act which produced the death must have been done in malice. Where the circumstances of deliberation and malice are not proved, the law will only presume the killing to be murder in the second degree.”

It is said by counsel for the defendant that the above instructions do not distinguish correctly between murder in the first and second degrees; and that if the distinction was properly stated the evidence in the case shows the crime to have been either murder in the first degree or justifiable homicide, and that for these reasons the second instruction ought not to have been given.

The instructions complained of very clearly and specifically, and in terms which could not be misunderstood by the jury, point out the difference between these two offences, and in giving them the trial court followed the views of this court as expressed in the following cases. (State vs. Dunn, 18 Mo. 419; State vs. Starr, 38 Mo. 270; State vs. Underwood, 57 Mo. 49; State vs. Hudson, 59 Mo. 135; State vs. Foster, 61 Mo. 549; State vs. Holme, 54 Mo. 153.) In the latter case Judge Wagner remarks, that “from the simple act of killing, the law will presume that it was murder in the second degree only. To raise it to a higher grade of murder in the first degree, there must be some circumstances shown from which the jury can find that it was done with wilfulness and premeditation.” * * * “The language of the court has uniformly been that under our statute, unless the circumstances of malice are proved, the law will presume the unlawful killing murder of the second degree.” * * “Whenever it appears from the whole evidence that the crime was at the moment deliberately and intentionally done it is murder in the first degree.” In Foster's case supra it is said that in the case of Underwood supraan instruction that if the killing was done by the shooting the law presumed that it was intentional and that it would be murder in the second degree, was by the court approved and was in consonance with all the cases construing the statute.

Judge Wagner speaking for...