State v. Mitchell
| Decision Date | 31 October 1876 |
| Citation | 64 Mo. 191 |
| Parties | STATE OF MISSOURI, Defendant in Error, v. AARON MITCHELL, Plaintiff in Error. |
| Court | Missouri Supreme Court |
Error to Perry Circuit Court.
J. L. Smith, Att'y Gen'l, for Plaintiff in Error, cited: Wagn. Stat., 445; State vs. Foster, 61 Mo. 549; State vs. Hudson, 59 Mo. 135; State vs. Joeckel, 44 Mo. 234; State vs. Saunders, 53 Mo. 234.)
J. C. Killian & Wm. H. Bennett, for Defendant in Error, cited: State vs. Shoultz, 25 Mo. 128, Instruction No. 11, p. 153; State vs. Hays, 23 Mo. 287; State vs. Nueslein, 25 Mo. 111; State vs. Joeckel, 44 Mo. 234; State vs. Holme, 54 Mo. 153.
Defendant was indicted in the Circuit Court of Perry County for murder in the first degree, for killing one Augustus Washington. He was put upon his trial, which resulted in his conviction for murder in the first degree. An ineffectual motion for new trial was made and the case is brought here for review on writ of error.
The only point relied upon by defendant's counsel is the action of the court in giving instructions.
It does not appear from the record that any instructions were asked either on the part of the State or the defendant, but the court of its own motion gave eleven instructions--to the giving of those numbered 1, 2, 5, 6, 7, 8 and 10, defendant excepted at the time.
The only instruction given, to which our attention has been specially called by defendant's counsel is that which follows, viz: “The court instructs the jury that if they believe from the evidence that defendant did willfully, that is, intentionally, kill deceased, then, and in such case, there is no murder in the second degree or manslaughter in the first, third or fourth degrees in the case; but the offense is either murder in the first degree or manslaughter in the second degree, or justifiable homicide accordingly as you may find the facts in proof: that is to say, if defendant willfully killed the deceased, in malice, that is, without sufficient cause or excuse, it is murder in the first degree. If defendant and deceased had a difficulty and you find from the evidence that defendant did not bring it about, or court or seek it, or voluntarily enter into the same, during the combat, and that while defendant was under the influence of passion caused thereby, he willfully killed deceased without malice, it is manslaughter in the second degree. If, on the other hand, you find that defendant courted, sought or brought on the difficulty and willfully killed deceased, it is murder, and if you find that defendant commenced or brought about the difficulty, or voluntarily entered into the same, then there is no manslaughter at all in any of its several degrees in the case.
This instruction, in so far as it declares to the jury that if defendant willfully killed deceased in malice, it was murder in the first degree, is in conflict with the views...
To continue reading
Request your trial
-
Cook v. State
...in the case was erroneous, 'in that it omits the element of premeditation' in defining murder in the first degree. In the case of State v. Mitchell, 64 Mo. 191, the judge instructed the jury as follows: 'The court instructs the jury that, if they believe from the evidence that defendant did......
-
Kansas City v. Bacon
... ... 1893, p. 43), should prevail instead of the park amendment of ... sixth of June, 1895. Ewing v. Hoblitzelle, 85 Mo ... 76; State ex rel. v. Railroad, 117 Mo. 1; State ... ex rel. v. Field, 99 Mo. 352; Davies v. Los ... Angeles, 86 Cal. 39. (2) Special taxes must be ... 598; Stone v. Hunt, 94 Mo ... 475, 7 S.W. 431; State v. McNally, 87 Mo. 644; ... State v. Simms, 68 Mo. 305; State v ... Mitchell, 64 Mo. 191; Stevenson v. Hancock, 72 ... Mo. 612; Spillane v. Railroad, 111 Mo. 555, 20 S.W ... 5 ... Besides, as has ... ...
-
In re North Terrace Park
...v. Allgaier, 88 Mo. 598; Stone v. Hunt, 94 Mo. 475, 7 S. W. 431; State v. McNally, 87 Mo. 644; State v. Simms, 68 Mo. 305; State v. Mitchell, 64 Mo. 191; Stevenson v. Hancock, 72 Mo. 614; Spillane v. Railway Co., 111 Mo. 555, 20 S. W. 5. Besides, as has been suggested by one of my associate......
-
State v. McKenzie
... ... second degree. It is the intentional killing with a deadly ... weapon from which the law presumes murder in the second ... degree. To constitute that crime the killing must always be ... intentional. State v. Elliott, 98 Mo. 151; State ... v. Mitchell, 64 Mo. 191, and cases there cited. All the ... elements of murder in the first degree must exist, except ... deliberation. The instruction also is faulty in that there is ... no evidence that Alexander McKinzie did the stabbing. Number ... 6 is wholly wrong for the absolute want of evidence on ... ...