State v. Wade

• Decision Date: 26 March 1901
• Citation: 61 S.W. 800,161 Mo. 441
• Parties: STATE v. WADE.
• Court: Missouri Supreme Court

61 S.W. 800

161 Mo. 441

STATE v. WADE.

Supreme Court of Missouri, Division No. 2.

March 26, 1901.

CRIMINAL LAW — BILL OF EXCEPTIONS — HOMICIDE — INSTRUCTIONS.

1. Where the trial court refused to grant an application to pass upon the question of accused's present insanity in order to take advantage of any error therein, the point must be saved and preserved in a bill of exceptions, and the mere copying it into the record and calling for it in the bill of exceptions was insufficient.

2. Where, on a trial for murder, one of the defenses was insanity, an instruction that the law of self-defense is applicable alike to the insane and to the sane, and that the defenses are consistent, and either one, if maintained, would authorize a verdict of not guilty, was improperly refused.

Appeal from circuit court, Clay county; E. J. Broaddus, Judge.

Francis M. Wade was convicted of murder in the second degree, and appeals. Reversed.

Farris & Son, Mr. Cramer, and W. J. Courtney, for appellant. The Attorney General, for the State.

SHERWOOD, J.

This is the second appearance of this cause in this court, the judgment of the lower court having been reversed on a former occasion because of the insufficiency of the indictment. 147 Mo. 73, 47 S. W. 1070. Since then the cause has again been tried, resulting in a verdict of guilty of murder in the second degree, and affixing the punishment at imprisonment in the penitentiary for the term of 15 years. Of its own motion, the trial court cut down this term to 10 years. The homicide charged in the indictment was the killing of Alexander Schamel by shooting him with a shotgun. The plea was not guilty, and this was supported by evidence tending strongly to show insanity of defendant when the act was done. Self-defense was also interposed. And there was evidence that while in the state penitentiary he was transferred to the insane ward of that institution, where he remained some weeks, when, the judgment in his cause having been reversed, he was returned to Clay county, and, a new indictment having been returned, he was again put upon his trial. The state is not represented in this court.

It is asserted for the defense that defendant made application through another for a jury to pass upon the question of whether defendant was insane, and so incapable of making his proper and necessary defense against the accusation contained in the indictment; and it is also asserted that the court refused to grant a jury to pass upon the question of defendant's present insanity, and that the report of certain physicians...