State v. Sharp

• Decision Date: 31 October 1879
• Citation: 71 Mo. 218
• Parties: THE STATE v. SHARP, Appellant.
• Court: Missouri Supreme Court

71 Mo. 218

THE STATE

v.SHARP, Appellant.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Nodaway Circuit Court.--HON. H. S. KELLEY, Judge.

REVERSED.

Beech & Lane for appellant.

J L Smith, Attorney-General, for the State.

SHERWOOD, C. J.

I. The defendant was indicted for the crime of murder in the first degree; the name of the person on whom the murder was alleged in the indictment to have been perpetrated, was “Martin Edward Hogan.” On trial had the jury by their verdict found the defendant guilty of murder in the first degree, and he was thereupon sentenced in conformity to the verdict.

1 MURDER: deliberation

We shall enter on no discussion of the testimony, as to the degree of homicide which it establishes, as we regard a fatal error as having been committed in the giving by the court, of its own motion, the second instruction on behalf of the State. That instruction is as follows: “Willfully means intentionally, and not accidentally; therefore, if the defendant intended to kill, such intention was willful. Deliberately means intentionally, purposely, considerately; therefore, if the defendant formed a design to kill, and was conscious of such a purpose, it was deliberate. Premeditatedly means thought of beforehand, for any length of time, however short; and malice signifies a condition of the mind, an unlawful intention to kill, or do some great bodily harm to another, without just cause or excuse. Aforethought means thought of beforehand, for any length of time, however short.” This instruction is clearly faulty, in that it does not correctly define the word “deliberately.” To constitute murder n the first degree, there must concur willfulness, deliberation, premeditation and malice aforethought. The first instruction clearly stated in general terms what was necessary to constitute the crime of murder in the first degree, but the terms used in that instruction needed to be explained, so that the jury might fully understand their true import. This explanation of the words used in the first instruction was attempted in the second instruction, but with a signal lack of satisfactory results. “Deliberately” is said to mean that which is done in a cool state of the blood. A homicide may be thought of beforehand--that is premeditated and intentionally done--and still, if the element of deliberation be lacking, the homicidal act will be only murder in the second degree; so that it will be readily e en that “deliberately” does not, as defined in the objectionable instruction, mean intentionally or purposely done; otherwise, every act of intentional killing, done with premeditation and malice, would carry with it the element of deliberation, and amount to murder in the first degree, for it is held that “all intentional homicides committed with...