State v. Moxley

• Decision Date: 22 December 1890
• Parties: The State v. Moxley, Appellant
• Court: Missouri Supreme Court

14 S.W. 969

102 Mo. 374

The State v. Moxley, Appellant

Supreme Court of Missouri

December 22, 1890

Appeal from Chariton Circuit Court. -- Hon. G. D. Burgess, Judge.

The court gave the following instructions at the request of the prosecution:

"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, wilfully, 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. Wilfully, as used in these instructions, means intentionally not accidentally; malice aforethought, as used in these instructions, means wickedness of purpose previously formed though it may not be formed but for a moment; premeditatedly means thought of before-hand, 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."

On behalf of the defendant the court gave the following instructions:

"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."

"3. The jury are instructed that the indictment in this case is of itself a mere formal accusation or charge against the defendant, and it 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.

"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 than that of his guilt you must find defendant not guilty.

"5. The court instructs the jury that it devolves upon the state to show, by the evidence, to the satisfaction of the jury, beyond a reasonable doubt, every material fact necessary to constitute the crime with which the defendant stands charged; and if the jury have a reasonable doubt, arising from the insufficiency of the evidence, of the existence of any such material fact, the jury will acquit."

"8. The previous good character of the defendant, if proved to your satisfaction, is a fact in the case which you ought to consider, together with all the other facts in evidence in passing upon the question of his guilt or innocence of this charge; for the law presumes that a man whose character is good is less likely to commit a crime than one whose character is not good.

"9. The jury are instructed that, in arriving at a conclusion of the guilt or innocence of the defendant, you may consider all the facts and circumstances detailed in evidence in the trial of the cause, and if from all the facts and circumstances detailed in evidence you have a reasonable doubt of defendant's guilt, you should give him the benefit of such doubt and acquit him."

Instructions asked by defendant, and refused, are set out in the opinion of the court.

Reversed and remanded.

W. W. Rucker, S. C. Major and Crawley & Son for appellant.

(1) The order appointing J. C. Wallace to prosecute because of the employment of the official prosecutor in the defense did not authorize him to sign bills of indictment. State v. Griffin, 87 Mo. 608; R. S. 1879, sec. 518; R. S. 1889, sec. 642; State v. Bruce, 77 Mo. 193; R. S. 1889, sec. 4093. (2) The section of vertebrae was not sufficiently identified, and it was error to allow them to be exhibited to the jury. (3) The court erred in excluding testimony of Dr. Glenn and Dr. Banning on part of defendant, as to the correct mode of conducting an autopsy, and as to whether or not the autopsy in question had been properly conducted. Davis v. State, 38 Md. 15, 36; Rogers' Expert Testimony, p. 239, sec. 173. (4) The trial court erred in excluding the testimony of John Gaston. (5) The trial court erred in refusing defendant's third instruction as to the degree of certainty required to convict upon circumstantial evidence. People v. Strong, 30 Cal. 151; 2 Best on Ev. [Morgan's Ed.] sec. 451, p. 765; People v. Cunningham, 6 Park. Crim. Rep. 398; State v. Harrison, 6 Tex.App. 42; State v. Hunt, 7 Tex.App. 212. (6) The court erred in refusing defendant's sixth instruction. (7) It was error to refuse defendant's seventh instruction. State v. Glahn, 97 Mo. 679. (8) The trial court erred in failing to "instruct the jury in writing upon all questions of law in the case necessary for their information in giving in their verdict." This duty is made imperative by statute, whether proper instructions are asked by counsel or not. R. S. 1889, sec. 4208. And independent of the statute the same obligation exists. The defendant's timely exception on this ground is sufficient alone to warrant a reversal. State v. Palmer, 88 Mo. 568; State v. Banks, 73 Mo. 592; State v. Branstetter, 65 Mo. 149; State v. Mahly, 68 Mo. 315. (9) The trial court erred in suffering counsel for the prosecution to transcend the bounds of legitimate argument to the jury by calling attention to defendant's failure to testify in his own behalf. State v. Tennison, 22 P. 429; State v. Mahly, 68 Mo. 315; State v. Martin, 74 Mo. 547.

John M. Wood, Attorney General, for the State.

(1) The testimony sought to be elicited from Mrs. Horton as to what deceased said in the summer as to the frequency of smothering spells with which she was afflicted was hearsay and immaterial. (2) The bones taken out of the neck of deceased were positively identified, and the court committed no error in allowing the expert to show from them where the injuries were located, and in admitting them in evidence. State v. Weiners, 66 Mo. 13. (3) The defense called Dr. Glenn and asked him if he heard the testimony of Dr. Brooks, to which he replied that he did not. Then defendant's counsel were proceeding to state what he had testified to, and the state objected, the court sustaining the objection. The rule in the examination of experts who have not had the opportunity of a personal examination, and who have not heard the testimony, is to state the whole case hypothetically and then ask him his opinion thereon. Whar. Crim. Ev. [9 Ed.] sec. 418, and note; Greenl. Ev., sec. 440; State v. Klinger, 46 Mo. 224. (4) Several doctors called as witnesses by defendant, who testified that they had heard the expert testimony on the part of the state, were asked by the defense whether the autopsy, as testified to, was proper, what was necessary to make a proper autopsy, and what was a proper autopsy. The objection of the state to these questions was sustained. Greenl. Ev., secs. 440, 441; Whart. Crim. Ev. [9 Ed.] secs. 409, 413. (5) Instructions, numbered 3 and 6, asked by defendant, which were refused, were embraced in other instructions which were given. State v. Smith, 80 Mo. 516; State v. Walton, 74 Mo. 270. (6) The seventh instruction asked by defendant was properly refused. State v. Bell, 70 Mo. 633. (7) John C. Wallace who was appointed by the court to prosecute the case had authority to sign the bill of indictment. R. S. 1889, sec. 642; State v. Bass, 12 La. Ann. 862; State v. Bond-reaux, 14 La. Ann. 88; White v. Polk County, 17 Iowa 413; State v. Dukes, 11 Ind. 557; State v. Johnson, 12 Tex. 231; State v. Lackey, 35 Tex. 357; State v. Fitzporter, 17 Mo.App. 17; 1 Bish. Crim. Proc., sec. 280.

Sherwood, J. Ray, C. J., and Black, J., concur in all that has been said. Brace, J., does the like except as to the last clause of paragraph 10, marked by an *. Barclay, J., will hereafter give expression to his own views. Barclay concurring.

OPINION

Sherwood, J.

-- The defendant was indicted for the murder of his wife, which was charged to have occurred on the twelfth day of October, 1885. The trial took place during the latter part of October and the first of November, 1889, resulting in a conviction of murder in the second degree and the punishment assessed at imprisonment in the penitentiary for the term of twenty years, and, judgment being entered accordingly, the defendant appeals to this court and for reversal of the judgment assigns various grounds.

The evidence, as will be seen by a statement of it which accompanies this opinion, was altogether circumstantial. The gist of the charge in the indictment was that the death was caused by an act of violence on the part of the defendant, which broke the cervical vertebrae.

At the time of the wife's death which occurred at night, at the dwelling-house of the defendant, no one was present except himself, his wife, babe and a small child, three or four years old. Another child, "Frankie," somewhat older, was at the time in the Indian Territory with its grandparents. The defendant did not go upon the stand as a witness, but it seems from the testimony of others that, so soon as his wife died, he hastened to inform his neighbors, and when they came he wished to send for a doctor, and being told it would do no good, that his wife was dead, he said he wanted to see what was the matter with her.

The defendant established an excellent character in the neighborhood in which he lived, and it appeared,...