State v. Moxley

• Decision Date: 16 May 1893
• Citation: 115 Mo. 644,22 S.W. 575
• Parties: STATE v. MOXLEY.
• Court: Missouri Supreme Court

22 S.W. 575

115 Mo. 644

STATE v. MOXLEY.

Supreme Court of Missouri, Division No. 2.

May 16, 1893.

MURDER — ELECTION BY STATE — DEGREE OF CRIME — REVIEW ON APPEAL.

1. On an indictment for murder the prosecuting attorney may properly be allowed, prior to the selection of the traverse jury, to elect to prosecute defendant for murder in the second degree.

2. If there is some evidence to support it, a verdict of guilty on a prosecution for murder will not be disturbed.

Appeal from circuit court, Chariton county; Gavon D. Burgess, Judge.

Marion Moxley was convicted of murder in the second degree, and appeals. Affirmed.

The other facts fully appear in the following statement by SHERWOOD, J.:

The indictment charged the defendant with the murder of his wife by an act of violence which broke the cervical vertebrae thereby causing her death. Another count charged the death to have been caused by strangling, etc. There were several counts which varied the method of charging the offense. The homicidal act charged to be murder in the first degree is alleged to have occurred on the 12th of October, 1885. On a former occasion this cause was here on defendant's appeal. (102 Mo. 374, 14 S. W. Rep. 969, and 15 S. W. Rep. 556,) when the judgment was reversed because of the occurrence of several errors. Since then the cause has been retried on the theory announced as the correct one by this court, both as to the reception of testimony and instructing the jury. The former trial resulted in a conviction of murder in the second degree, the punishment being assessed at 20 years in the penitentiary; the recent one in a conviction of a like grade of offense, the punishment being fixed at 14 years.

At the close of the trial, the court, at the instance of the state, gave the following instructions: "(1) The jury are instructed that if they believe from the evidence beyond a reasonable doubt that the defendant, Marion Moxley, on or about October 12, 1885, in Chariton county, Missouri, willfully, feloniously, premeditatedly, and of his malice aforethought killed Mary Moxley in the manner and by the means specified in the indictment, then they must find him guilty of murder in the second degree, and will assess his punishment at imprisonment in the penitentiary for a term of not less than ten years. (2) `Willfully,' as used in these instructions, means `intentionally,' not `accidentally;' `malice afore-thought,' as used in the instructions in this case, means `wickedness of purpose, previously formed, though it may not be formed but for a moment;' `premeditatedly' means `thought of beforehand, for any length of time, however short;' by the term `feloniously' is meant `wickedly and unlawfully, from a depraved heart, or a mind which regards not social obligation, but is fatally bent on mischief.' (3) The doubt that will authorize an acquittal of the defendant must be a real, substantial doubt, arising from the insufficiency of the evidence, and not a mere possibility that the defendant is innocent. (4) If the jury find the defendant guilty of murder in the second degree, the verdict may be in the following form: `State of Missouri vs. Marion Moxley. We, the jury, find the defendant guilty of murder in the second degree, and assess his punishment at imprisonment in the penitentiary for a term of _____ years. _____ _____, Foreman.'"

On behalf of the defendant the court then gave the jury the following instructions, numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10, to wit: "(1) The court instructs the jury that the law presumes the defendant innocent in this case, and not guilty as charged in the indictment; and that you should act on this presumption, and acquit the defendant unless the state by evidence satisfies you of his guilt beyond a reasonable doubt. (2) The jury are instructed that the indictment in this case is of itself a mere formal accusation or charge against the defendant, and is not of itself any evidence of defendant's guilt; and no juror should permit himself to be to any extent influenced against the defendant because or on account of the indictment in the case. (3) The prosecution seeks a conviction in this case upon circumstantial evidence alone. The court therefore instructs you that you cannot convict the defendant unless the state has proven his guilt from the evidence beyond a reasonable doubt by facts and circumstances all of which are consistent with each other and with his guilt, and absolutely inconsistent with any reasonable theory of innocence. (4) Unless the facts and circumstances as shown by the evidence point so clearly and conclusively to the defendant's guilt that the death of Mary Moxley cannot be reasonably accounted for upon any other theory...