State v. McKenzie

• Decision Date: 27 January 1891
• Citation: 102 Mo. 620,15 S.W. 149
• Parties: STATE v. McKENZIE et al.
• Court: Missouri Supreme Court

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 `in a cool state of the blood, and not in a heat of passion.'" The contention is that this definition does not go far enough, and that it ought to have informed the jury what "a heat of passion" is. We think this point well taken. Deliberation, however, being an element of murder of the first degree only, and the defendants having been convicted of murder of the second degree, this would not be reversible error; but, as the defendants can be tried again for murder of the first degree, it is important for us to notice it. The court ought to define that "heat of passion" produced by a just cause of provocation which will reduce the homicide to murder in the second degree, as also that "heat of passion" produced by a lawful provocation which will reduce it to manslaughter, as we hold that the court ought to instruct on these grades of the offense at the next trial.

3. The defendants' counsel contends again that the court erred in its definition of "murder of the second degree." The instructions in regard to this grade of homicide, given by the court, are as follows: "(2) If you believe and find from the evidence in this cause beyond a reasonable doubt that the defendants, at the county of Randolph, and in the state of Missouri, on or about the 8th day of September, 1889, willfully, premeditatedly, and with malice aforethought, but without deliberation, cut and stabbed with a knife, and that said knife was a deadly weapon, and by cutting and stabbing mortally wounded John Emery, and that said John Emery died at said Randolph county of said mortal wound within a year after said cutting and stabbing, then you should find defendants guilty of murder in the second degree; and if you further believe and find from the evidence in this cause that defendants intentionally stabbed and mortally wounded deceased with a knife, and that said knife was a deadly weapon, then the law presumes that the killing was murder in the second degree, in absence of proof to the contrary, and it devolves upon defendants to adduce evidence to meet or repel that presumption on the part of the state." "(5) The jury are instructed that from the simple act of killing with a deadly weapon the law presumes it to be murder in the second degree. If the defendants killled Emery by stabbing him with a knife, then the law presumes the...