State v. Lewis

• Decision Date: 31 October 1881
• Citation: 74 Mo. 222
• Parties: THE STATE, Appellant, v. LEWIS.
• Court: Missouri Supreme Court

74 Mo. 222

THE STATE, Appellant,

v.LEWIS.

Supreme Court of Missouri.

October Term, 1881.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

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

C. O. Bishop and A. N. Merrick for respondent.

RAY, J.

The defendant was indicted and convicted of murder in the first degree in the St. Louis criminal court, from which he appealed to the St. Louis court of appeals, where the judgment of the criminal court was reversed and the cause remanded, on the ground of error in overruling his application for a continuance, and from this reversal, in the court of appeals, the State brings the case here by appeal. The case is not yet reported, but the opinion of the court of appeals was delivered at its October term, 1880, when the facts were fully stated. This opinion of the court of appeals appears to us both just and well considered, and disposes of the several questions therein discussed in an able, clear and satisfactory manner, and we deem it wholly unnecessary for us to restate the matter or undertake to add anything thereto.

One or two questions, however, have been pressed upon our attention which were not passed upon by the court of appeals, and which (as the case must go back to the criminal court for retrial for the reasons assigned by the court of appeals) we deem it proper, briefly, to notice. It is insisted that the definition of the term “deliberately” and the instruction given on murder in the second degree, as found in this record, are calculated to mislead and do not state the law correctly. That definition and instruction are as follows: 1. By the term “deliberately” is meant in a cool state of the blood, not in that heated state which the law denominates “passion;” and the passion here meant is not that which comes of no cause, but that and only that which is produced by some legal provocation. 2. And if, from the evidence, you find that the defendant actually did the killing complained of, and find that it was not done deliberately, or if deliberately, not premeditatedly, and that it was done at the city of St. Louis and in the manner and by the means alleged in the indictment, then you ought not to convict him of murder in the first, but ought to convict him of murder in the second degree.

These instructions are not in harmony with the definitions and doctrine on these subjects, as laid down in a number of recent decisions of this court. State v. Wieners, 66 Mo. 13; State v. Curtis, 70 Mo. 594; State v. Sharp, 71 Mo. 218; State v. Simms, 71 Mo. 538; State v. Robinson, 73 Mo. 306. The phrase “heat of passion,” as used in the above authorities, in this connection, is not used in its technical sense, but to denote a condition of mind contra-distinguished from that cool state of the blood implied in the use of the term “deliberation,” and the “passion” there referred to is not limited to that heated state which comes from and is produced only by some legal provocation, as seems to be stated in the latter part of the above definition in this case, which we think somewhat faulty and calculated to mislead. According to all the authorities above cited, “premeditation” is an essential element of every murder in the second degree. The above instruction on that subject in this case it would seem allows a conviction without that ingredient. That is not the law. In the recent case of the State v. Robinson, supra, this court passed upon an instruction substantially like this, and expressly held that there could be no murder in the second degree without premeditation. This case also recognizes an excited state of the mind produced by a cause short of what is known as lawful provocation, as an element in determining whether the murder is of the first or second degree. The judgment of the court of appeals reversing the judgment of the criminal court and remanding the cause, is, therefore, affirmed.

All the other judges concur except NORTON, J., and SHERWOOD, C. J., who dissent.

HENRY, J., CONCURRING.

I fully concur in the opinion delivered by Judge RAY. Never before, to my knowledge, was one indicted for murder required to get ready for his trial within the short period of four days, one of which was the Lord's day. It was shown by the affidavit and was otherwise known to the court that the defendant's witnesses resided in another county. That other continuances were granted and trial had, was not a sufficient reason for the short time given the accused. When a trial is had or a continuance is granted and the witnesses discharged, they are not required to remain until the next term of the court.

His affidavit for a continuance contained all the formal allegations required by law, and among others, the following statement: Affiant further says that on or about April, 1879, he was made acquainted with T. L. Grasty by his former counsel; that said Grasty then and there undertook the conduct and management of affiant's cause, the said former counsel then and there declining further to act in affiant's behalf; that said Grasty subsequent to the April aforesaid has had entire control and management of affiant's case; but never asked this affiant what witnesses he had in his own behalf, nor what he, affiant, expected to prove by them; that the said Grasty called occasionally at the “screen” in the jail, but never sought to ask of this affiant any information of or concerning this cause; but at such times made application for money, stating at such times...