State v. McGinnis

• Decision Date: 31 October 1882
• Citation: 76 Mo. 326
• Parties: THE STATE v. MCGINNIS, Appellant.
• Court: Missouri Supreme Court

76 Mo. 326

THE STATE

v.MCGINNIS, Appellant.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Howell Circuit Court.--HON. J. R. WOODSIDE, Judge.

AFFIRMED.

Smith & Krauthoff and N. H. Livingston for appellant.

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

NORTON, J.

Defendant was indicted in the circuit court of Howell county, for murder in the first degree for killing his wife Sarah McGinnis on the 21st day of May, 1882. He was tried and convicted, and brings the case to this court by appeal, and seeks a reversal of the judgment on the alleged grounds, among others to be hereafter noticed, that the court erred in giving the second, fourth and fifth instructions for the State.

1. MURDER: deliberation: instructions, harmless error in.

It is insisted that the court erred in the second instruction defining deliberately to mean, “done in a cool state of the blood--that is, not in a heated state of the blood caused by lawful provocation.” The definition thus given is not in harmony with the ruling of this court in the cases of State v. Lewis, 74 Mo. 222; State v. Talbott, 73 Mo. 347, and State v. Ellis, 74 Mo. 207. In the last of these cases, where the same error here complained of was committed, it was held not to be reversible error, because there was no evidence tending to show any provocation or the existence of passion on the part of defendant which excluded deliberation and mitigated the homicide. So in the present case, after an examination of the record, and finding no evidence tending to show provocation, either by the words or acts of deceased, or the existence of such passion on the part of defendant as would mitigate the homicide, the error complained of must be in this case, as it was in that, held to be an immaterial one.

It is also insisted that the court erred in giving instructions four and five, which are as follows:

4. That although the defendant may have proven that Mary Fitzpatrick's reputation for chastity is bad, yet the jury should not exclude her testimony on that account if her testimony is corroborated by other witnesses or other facts and circumstances.

5. That the defendant has a right to be a witness in his own behalf, yet in weighing his evidence and the weight to be given thereto, they have a right to take into consideration the interest that he has at stake in this case.

2. WITNESSES.

The fourth instruction, when taken in connection with the sixth given for the State, in which the jury are told that they are the sole judges of the credibility of witnesses and weight of testimony, and if they believe that any witness has willfully sworn falsely to any material fact in the case, they should disregard said testimony and were at liberty to disregard all the evidence of such witness; and when it is considered also in connection with the eighth instruction given for defendant, in which the jury are told that the fact that the reputation of any witness for chastity and virtue was bad, might be taken into consideration by them in weighing the testimony and arriving at the credibility of such witness, the law of the case was fairly given to the jury.

3. ______: cross-examination of the accused.

The fifth instruction was fully warranted by the cases of State v. Maguire, 69 Mo. 197, and...