State v. McKenzie

CourtUnited States State Supreme Court of Missouri
Writing for the CourtThomas
Citation102 Mo. 620,15 S.W. 149
PartiesSTATE v. McKENZIE et al.
Decision Date27 January 1891
15 S.W. 149
102 Mo. 620
STATE
v.
McKENZIE et al.
Supreme Court of Missouri, Second Division.
January 27, 1891.

MURDER — INSTRUCTIONS — EVIDENCE.

1. On trial for murder it appeared that defendants, father and son, and the deceased were all drinking together in a friendly manner in a saloon about midnight, and went outside together, where, soon after, both defendants were seen scuffling with deceased, who received a knife wound from the son, from which he died next day; that the father had said to a witness on the next morning that he and deceased were contending about politics, and that he had a cane in his hand, with which he had tapped deceased, saying he did not have a son that could not lick him, "even down to John," the co-defendant. Held that, though this evidence was contradicted on behalf of defendants, it was not error for the court to instruct the jury that they might find the father guilty of murder in the first or second degree, as an aider and abettor of his son.

2. On a trial for murder, where the evidence justifies instructions as to the degrees of murder, and the court tells the jury that "`deliberation' means a `cool state of the blood, and not in a heat of passion,'" it is error for the court not to go further, and inform the jury what "heat of passion" is, and to define that "heat of passion" produced by a just cause of provocation which will reduce the homicide to murder in the second degree, or to manslaughter.

3. The intent to kill is an essential element of murder in the second degree, and where the court has told the jury in one instruction that if they find that defendants willfully, premeditatedly, and with malice aforethought, but without deliberation, cut and stabbed deceased with a knife, which was a deadly weapon, and thereby killed him, they must find them guilty of murder in the second degree, it is error to give another instruction to the effect that from the simple act of killing with a deadly weapon the law presumes that it was done intentionally, premeditatedly, and with malice aforethought.

4. An instruction that if the jury believe from the evidence that defendants stabbed deceased at the time and place charged with a knife, the law presumes from the use of the knife that defendants intended to kill, is error, as being too general. The jury should have been told that if defendants stabbed deceased in a vital part with a knife, and the knife was a deadly weapon, then they are presumed to have intended death.

5. Where it appeared in evidence that one of the defendants had stated that he had tapped deceased with a cane, but that, upon his direct examination as a witness, he had testified that he had no cane with him, and did not strike deceased wih a cane, and he was asked on cross-examination, "Were you sitting in the saloon there with your head down on a cane?" it is not error to overrule an objection to the question on the ground that the direct examination had been confined to what occurred after he left the saloon.

6. Where two defendants are tried jointly for murder it is not error to admit evidence of threats made by one of them against deceased, and of statements as to his own connection with the difficulty, not in the presence or hearing of the other defendant, if the court, in its instructions, tells the jury that these threats and statements must not be considered by them as far as the other defendant is concerned.

Appeal from circuit court, Randolph county; JOHN A. HOCKADAY, Judge.

Ben T. Hardin, for appellants. John M. Wood, Atty. Gen., for respondent.

THOMAS, J.


The defendants were tried in the Randolph circuit court, at Moberly, in June, 1890, for the killing of John Emery. They were both found guilty of murder of the second degree, John McKenzie being sentenced to the penitentiary for 52 years, and Alexander McKenzie for 10; and the case is here on appeal. Defendants, through their counsel, contend that the court below erred in its instructions to the jury, in excluding competent and admitting incompetent evidence; in permitting the prosecuting attorney to cross-examine defendants as to matters not referred to by them in their examination in chief, in not granting a new trial on account of the separation of the jury; in not instructing the jury in regard to manslaughter; and in not granting a new trial because the venue was not proved.

1. Defendants' counsel contends that there was no evidence justifying the court in instructing the jurors that they might find defendant Alexander McKenzie guilty of the crime of murder of the first or second degree, as an aider and abettor of John McKenzie in the commission of the homicide; indeed, that all the evidence shows that he did not aid or abet John in the homicidal act. We do not think this contention sustained by the record. Thomas O'Brien testified that he saw the defendants and the deceased scuffling, and Mrs. Owens swore that the next morning after the homicide she heard Alexander McKenzie say that he and the deceased were contending about politics, and he had a cane in his hand, and "he tapped him with that, and said, `I didn't have a son that couldn't lick him, even down to John.'" We think the testimony of O'Brien and Mrs. Owens, taken in connection with the relationship existing between defendants, and the conceded fact that Alexander was present, justified the court in leaving it to the jury to say by their verdict whether he aided and abetted John in the homicide or not.

2. The court defined "deliberation" thus: "`Deliberation' means...

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19 practice notes
  • State v. Warren, No. 30203.
    • United States
    • Missouri Supreme Court
    • November 25, 1930
    ...v. Swain, 68 Mo. 615; Chawkley v. Ry. Co., 317 Mo. 782, 297 S.W. 26; State v. Douglas, 312 Mo. 373, 278 S.W. 1026; State v. McKenzie, 102 Mo. 620; State v. Weeden, 133 Mo. 70; State v. Craft, 299 Mo. 332, 253 S.W. 228; Rock v. Keller, 312 Mo. 458, 278 S.W. 766; State v. Burns, 312 Mo. 673, ......
  • State v. Brinkley, No. 39557.
    • United States
    • Missouri Supreme Court
    • March 11, 1946
    ...70 Mo. 207; State v. Vansant, 80 Mo. 67; State v. Heath, 221 Mo. 565, 121 S.W. 149; State v. Connor, 252 S.W. 713; State v. McKinzie, 102 Mo. 620, 15 S.W. 149. (23) The fist attack by deceased upon appellant was lawful provocation to create heat of passion and the jury should have been so i......
  • State ex rel. Reis v. Nangle, No. 30796
    • United States
    • Missouri Court of Appeals
    • September 19, 1961
    ...to and passed upon by the probate court; that is, adjustment of the final settlement. Sections 287, 289, R.S.Mo.1919; Branson v. Branson, 102 Mo. 620, 15 S.W. 74; Leahy v. Campbell, 274 Mo. 356, 202 S.W. 1114.' (Emphasis In his suggestions respondent also relies upon In re Turley, Mo.App., ......
  • State v. Foster, No. 39962.
    • United States
    • United States State Supreme Court of Missouri
    • October 14, 1946
    ...70 Mo. 207; State v. Vansant, 80 Mo. 67; State v. Heath, 221 Mo. 565, 121 S.W. 149; State v. Connor, 252 S.W. 713; State v. McKinzie, 102 Mo. 620, 15 S.W. 149. (33) The heat of passion that produces lawful provocation ought to be defined. State v. Skaggs, 159 Mo. 581, 60 S.W. 1048; State v.......
  • Request a trial to view additional results
19 cases
  • State v. Warren, No. 30203.
    • United States
    • Missouri Supreme Court
    • November 25, 1930
    ...v. Swain, 68 Mo. 615; Chawkley v. Ry. Co., 317 Mo. 782, 297 S.W. 26; State v. Douglas, 312 Mo. 373, 278 S.W. 1026; State v. McKenzie, 102 Mo. 620; State v. Weeden, 133 Mo. 70; State v. Craft, 299 Mo. 332, 253 S.W. 228; Rock v. Keller, 312 Mo. 458, 278 S.W. 766; State v. Burns, 312 Mo. 673, ......
  • State v. Brinkley, No. 39557.
    • United States
    • Missouri Supreme Court
    • March 11, 1946
    ...70 Mo. 207; State v. Vansant, 80 Mo. 67; State v. Heath, 221 Mo. 565, 121 S.W. 149; State v. Connor, 252 S.W. 713; State v. McKinzie, 102 Mo. 620, 15 S.W. 149. (23) The fist attack by deceased upon appellant was lawful provocation to create heat of passion and the jury should have been so i......
  • State ex rel. Reis v. Nangle, No. 30796
    • United States
    • Missouri Court of Appeals
    • September 19, 1961
    ...to and passed upon by the probate court; that is, adjustment of the final settlement. Sections 287, 289, R.S.Mo.1919; Branson v. Branson, 102 Mo. 620, 15 S.W. 74; Leahy v. Campbell, 274 Mo. 356, 202 S.W. 1114.' (Emphasis In his suggestions respondent also relies upon In re Turley, Mo.App., ......
  • State v. Foster, No. 39962.
    • United States
    • United States State Supreme Court of Missouri
    • October 14, 1946
    ...70 Mo. 207; State v. Vansant, 80 Mo. 67; State v. Heath, 221 Mo. 565, 121 S.W. 149; State v. Connor, 252 S.W. 713; State v. McKinzie, 102 Mo. 620, 15 S.W. 149. (33) The heat of passion that produces lawful provocation ought to be defined. State v. Skaggs, 159 Mo. 581, 60 S.W. 1048; State v.......
  • Request a trial to view additional results

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