State v. Talbott

Decision Date30 April 1881
Citation73 Mo. 347
PartiesTHE STATE v. ALBERT AND CHARLES TALBOTT, Appellants.
CourtMissouri Supreme Court

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

AFFIRMED.

Dawson & Roseberry and Johnson & Anthony for appellants.

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

HENRY, J.

At the November term, 1880, of the Nodaway circuit court, the defendants and Henry Wyatt were jointly indicted for the murder of Dr. Perry A. Talbott. At the same term, on motion of Wyatt, a severance was granted him, and these defendants were arraigned and pleaded not guilty, and the cause was continued to an adjourned term of said court held in January, 1881, at which a trial was had, resulting in their conviction of murder of the first degree, and from the judgment thereon they have appealed.

Except proof of admissions and statements made by defendants, the evidence was circumstantial, but we are not prepared to say that it did not authorize the verdict, and shall, therefore, proceed to examine the questions upon which the court is alleged to have committed error in the progress of the trial.

The evidence proved that Dr. Talbott was assassinated while sitting in a room of his residence with members of his family on the night of the 18th day of September, 1880. He was shot by some one without the house about eleven o'clock at night, and lived until about four o'clock p. m. next day. He made no statement with respect to the tragedy, although rational and conscious that he could live but a short time. The day after he was shot he made his will and testament, by which he disposed of all his property, a considerable estate, to his wife and children, including these defendants. Each of the defendants made statements implicating himself in the murder, and the testimony of Wyatt was to the effect that they had previously planned the murder of their father and communicated the fact to witness, and that on the night in question Charles took the shotgun upstairs, and when the doctor returned from visiting a sick child in the neighborhood, Albert took the mule the doctor had ridden to the stable, and Charles went down-stairs and about a minute after Charles went down, Albert having returned in the house, witness heard the shot and they both told him that Charles did the shooting. There was evidence of frequent quarrels between the doctor and the defendants, and of a want of affection and respect on their part for him.

The court gave the following instructions for the State, against the objections of defendants:

1. Under the law, as declared in the instructions of the court, and the evidence as offered on the trial under the instructions of the court, it is the duty of the jury to find the defendants not guilty, or guilty of murder either in the first or in the second degree, as they may believe the fact to be. And the jury may find both the defendants guilty of murder in either of said degrees, or they may find one guilty and acquit the other, accordingly as they may believe the facts to be from the evidence in the case.

2. If the jury believe from all the evidence, beyond a reasonable doubt, that at the time mentioned in the indictment, in this county, the defendants, Charles E. Talbott and Albert P. Talbott, willfully, deliberately, premeditatedly, and of their malice aforethought, killed Perry H. Talbott by shooting him with a shotgun, or any kind of firearms, they will find the defendants guilty of murder in the first degree, and so state in their verdict.

3. Willfully, as used in the foregoing instruction, means intentionally--that is, not accidentally. Therefore, if defendants intended to kill, such killing is willful. Deliberately means done in a cool state of the blood--that is, not in a heated state of blood caused by lawful provocation. If, therefore, in such state the defendants formed a design to kill, and did kill, the act was deliberately done. Premeditatedly, as used in the second instruction, means thought of beforehand for any length of time, however short. Malice, as used in said instruction, signifies a condition of the mind void of social duty and fatally bent on mischief or 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.

4. If the jury believe from all the evidence, that on or about the 18th day of September, 1880, in this county, the defendants, with intent to kill, willfully, premeditatedly and of malice aforethought, but without deliberation, as these terms have been defined, shot and killed Perry H. Talbott, the jury will find defendants guilty of murder in the second degree, and so state in their verdict, and assess their punishment separately at imprisonment in the penitentiary for any period not less than ten years.

5. If the jury believe from the evidence that the defendants, Albert P. Talbott and Charles E. Talbott, made any statements after the commission of the homicide, and in relation thereto, the jury must consider all that each one said together, and what one of them said cannot be used against the other, unless assented to or acquiesced in by the other; and while each of said defendants is entitled to what he said for himself, if true, the State is entitled to anything he said against himself in any conversation proved by the State. What each defendant said against himself the law presumes to be true, because against himself; what, however, he said for himself, the jury are not bound to believe, because said in a conversation proved by the State; but they may believe or disbelieve it accordingly as it is shown to be true or false by the evidence in the case.

6. He who willfully, that is, intentionally, uses upon another, at some vital part, a deadly weapon, as a loaded gun or firearm, must, in the absence of qualifying facts, be presumed to know that the effect is likely to be death, and knowing this, must be presumed to intend the death which is the probable and ordinary consequence of such an act; and if such deadly weapon is used without just cause or provocation, he must be presumed to do it wickedly or from a bad heart. If, therefore, the jury believe that defendants took the life of Perry H. Talbott by shooting him in a vital part with a shotgun or other firearm, loaded with gunpowder and a leaden bullet, with a manifest design to use such weapon upon him, and with sufficient time to deliberate and fully form the conscious purpose to kill, and without sufficient reason or cause or extenuation, then such killing is murder in the first degree; and while it devolves on the State to prove the willfulness, deliberation, premeditation and malice aforethought, all of which are necessary to constitute murder in the first degree; yet these need not be proved by direct evidence, but may be deduced from all the facts and circumstances attending the killing; and if the jury can satisfactorily and reasonably infer their existence from all the evidence, they will be warranted in finding the defendants guilty of murder in the first degree 7. Although it is charged in the indictment that Charles E. Talbott fired the fatal shot, and that Henry Wyatt and Albert P. Talbott were present, aiding, abetting, helping, comforting, maintaining and assisting the said Charles E. Talbott to kill and murder Perry H. Talbott, yet it is not necessary for the State, in order to establish the guilt of either of the defendants now on trial, to prove that either of them actually held and discharged the gun which killed Perry H. Talbott; but if the jury believe that said Henry Wyatt, or either of the defendants on trial fired the fatal shot, and that the other defendant was present, aiding, abetting, helping, comforting, maintaining and assisting the said Wyatt or the other defendant in such killing, then such defendant is guilty of murder equally with said Wyatt or the other defendant, who the jury may believe actually fired the shot.

8. It is the duty of the court to instruct the jury as to the law arising in this case, and it is the duty of the jury to respect the instructions of the court as the law of the case, and to find the defendants guilty or not guilty, according to the law as delivered by the court, and the evidence as they receive it from the witnesses under the directions of the court. The jury have no right to permit their feelings of sympathy to interfere with their duty, whatever that may be under the law and evidence, nor on the other hand to allow any considerations of public policy or over-anxiety to enforce the law to influence them in the fair consideration and decision of the case, otherwise than strictly in accordance with the evidence in the cause.

9. If the jury believe from all the evidence in the case, beyond a reasonable doubt, that either of the defendants is guilty of murder in the first or second degrees, as these degrees have been defined by the instructions, but have a doubt as to the degree of which such defendant is guilty, the jury will give him the benefit of such doubt and find him guilty of murder in the second degree.

10. Before the jury can convict the defendants of murder either in the first or the second degree in this case, they must believe from all the evidence, beyond a reasonable doubt, that they are guilty; but such a doubt, to authorize an acquittal, must be a real substantial doubt, and not a mere possibility of innocence.

The following are the instructions of the court to the jury on the behalf of the defense:

1. Unless the jury believe from the evidence, beyond a reasonable doubt, that at the time mentioned in the indictment the defendants, Albert P. and Charles E. Talbott willfully, deliberately, premeditatedly and of their malice aforethought, did shoot and kill Perry H. Talbott, then the jury will find the defendants not guilty of murder in the first degree. And the jury are instructed that the term willful, as used above in this...

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    ...cit. 416, 74 S. W. 864; State v. Howell, 117 Mo. 323, 23 S. W. 263; State v. Duestrow, 137 Mo. 44, 38 S. W. 554, 39 S. W. 266; State v. Talbott, 73 Mo. 347; State v. Hollenscheit, 61 Mo. 302; and numerous other Appellant complains of instruction No. 5, which substantially told the jury that......
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