State v. Peak

• Decision Date: 31 October 1884
• Citation: 85 Mo. 190
• Parties: THE STATE v. PEAK, Appellant.
• Court: Missouri Supreme Court

85 Mo. 190

THE STATE

v.PEAK, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Sullivan Circuit Court.--HON. G. D. BURGESS, Judge.

AFFIRMED.

No brief for appellant.

D. H. McIntyre, Attorney General, for the state.

(1) The objection to admission of evidence comes too late in the motion for a new trial. State v. Blan, 69 Mo. 317; State v. Williams, 77 Mo. 310; State v. Burnett, 81 Mo. 119. (2) The seventh instruction given for the state, has been sanctioned in the following cases: State v. Linney, 52 Mo. 40; State v. Underwood, 57 Mo. 40; State v. Brown, 64 Mo. 367. (3) The ninth instruction correctly defines manslaughter in the third degree. R. S., sec. 1244. (4) The twelfth instruction for the state also correctly declares the law. State v. Talbott, 73 Mo. 547; State v. Curtis, 70 Mo. 594; State v. West, 69 Mo. 401.

EWING, C.

The defendant was indicted at the November term, 1881, of the circuit court of Sullivan county, for murder in the second degree, for the killing of one James R. Harbolt, in said county, on the third day of October, 1881. He was arraigned at the same term of court, and pleaded “not guilty,” and being then put upon his trial was convicted of manslaughter in the third degree, and his punishment assessed at imprisonment in the penitentiary for the term of three years. He appealed to this court.

I. The evidence was all admitted without objection, nor was any evidence which was offered rejected by the court. It was too late to make any points upon the

admission, or rejection of testimony in the motion for new trial, and the point cannot be made in this court for the first time. State v. Blan, 69 Mo. 317; State v. Williams, 77 Mo. 310: State v. Burnett, 81 Mo. 119.

II. It is alleged in the motion for new trial that the court erred in giving instructions numbered seven, nine, ten and twelve, as follows:

“7. If the jury find, from the evidence, that defendant and deceased had a difficulty which resulted in the death of the deceased, and that defendant commenced the difficulty, or brought it on by any wilful and unlawful act of his committed at the time, or that he voluntarily, and of his own free will and inclination entered into the difficulty, then there is no self-defence in the case, and they should not acquit on that ground; and in such case it makes no difference how imminent the peril might have been in which the defendant was placed during the difficulty.”

“9. If the jury believe from the evidence, beyond a reasonable doubt, tha defendant killed deceased with a knife, which was a dangerous weapon, in a heat of passion, and without a design to kill him, they will find him guilty of manslaughter in the third degree, unless they further find from the evidence that such killing was done in self defence, in which event they will find him not guilty.”

The tenth instruction simply declares the punishment for manslaughter in the third degree. Sec. 1251, R. S., 1879.

“12. The jury are instructed, that in considering what the defendant said after the fatal act, they must consider it all together. He is entitled to the benefit of what he said for himself, if true, as is the state to the benefit of what he said against himself in any conversation proved by the state. What he said against himself the law presumes to be true, because against himself. But what he said for himself the jury are not bound to believe, because said in a conversation proved by the state. They may believe it or disbelieve it, as it may be shown to be true or false, by the evidence in the case.”

Instruction numbered three, asked by defendant and refused by the court, is as follows: “Although the jury may believe that defendant did stab and kill deceased at the time and place mentioned in the indictment, yet if they further find that at the time of stabbing, deceased was assaulting defendant with a club, block, or other weapon, apparently sufficient to inflict death, or real personal injury on defendant, that defendant was thereby inspired with fear of personal and...