State v. Wagner

• Decision Date: 31 October 1883
• Citation: 78 Mo. 644
• Parties: THE STATE v. WAGNER, Appellant.
• Court: Missouri Supreme Court

78 Mo. 644

THE STATE

v.WAGNER, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Jackson Criminal Court.--HON. H. P. WHITE, Judge.

AFFIRMED.

Haire & Kenyon for appellant.

D. H. McIntyre, Attorney General, and Wm. H. Wallace for the State.

HOUGH, C. J.

The defendant was indicted for murder in the first degree, and was convicted of murder in the second degree, and sentenced to imprisonment in the penitentiary for ten years.

He is charged in the indictment with having at divers times prior to and on the 24th day of November, 1881, willfully, deliberately, premeditatedly and of his malice aforethought, administered a certain poison called laudanum to one Norman J. Bauder, designing and intending him, the said Bauder, thereby to kill and murder, from the effects of which said poison said Bauder died on the 24th day of November, 1881. There was testimony tending to show that the defendant administered the laudanum to deceased from time to time, not for the purpose of killing him, but for the purpose of stupifying his faculties and weakening his intellect so that he might obtain possession of certain money and property which the deceased had; and there was also testimony tending to show that the deceased was afflicted with diarrhœa, and that the laudanum was administered to him by the defendant for the purpose of checking the disease. It also appears that the defendant administered an unusually large dose to the deceased on the day of his death, from the effects of which there is testimony tending to show he died. The court instructed the jury as to the law of murder in the first degree, murder in the second degree, and manslaughter in the fourth degree, as follows:

1. If you find from the evidence that the defendant, A. J. Wagner, at the county of Jackson, in the State of Missouri, at any time previous to the filing of the indictment in this cause, intending and contriving to kill the deceased, Norman J. Bauder, did willfully, deliberately, premeditatedly and of his malice aforethought, kill said Norman J. Bauder by giving to said Bauder a quantity of poison called laudanum, or by giving said Bauder divers quantities of said poison at divers times, then you will find the defendant guilty of murder in the first degree.

2. If you find from the evidence that the defendant, A. J. Wagner, at the county of Jackson in the State of Missouri, at any time within three years next before the filing of the indictment in this cause, in pursuance of a design on his part to produce, increase or prolong such a state of stupor or sickness on the part of deceased, Norman J. Bauder, as would enable him, the defendant, to accomplish any unlawful purpose with reference to said Bauder, did willfully, premeditatedly and of his malice aforethought administer to him, the said Bauder, any quantity or quanties of a poison called laudanum, knowing that to do so was wrong and dangerous to life, and should you further find that in consequence of such laudanum, so administered, for said purpose by defendant, the said Bauder died, then in such case, the law presumes such laudanum was administered by said Wagner with intent to kill said Bauder, and also that such killing was done with malice aforethought, and the jury must find the defendant guilty of murder in the second degree and assess his punishment at imprisonment in the State penitentiary for a term not less than ten years.

3. If you find from the evidence that defendant brought about the death of deceased by giving him laudanum, and yet not in such a manner and with such intent as to render him guilty of murder in the first or second degree, under the foregoing instructions, yet if you find that defendant was attempting to treat deceased for some disease with which deceased was afflicted, and in such treatment carelessly and recklessly so administered laudanum to deceased, that he was guilty of culpable negligence in producing the death of deceased thereby, then you will find defendant guilty of manslaughter in the fourth degree, and assess his punishment at imprisonment in the penitentiary for two years, or by imprisonment in the county jail not less than six months, or by a fine not less than $500, or by both a fine not less than $100 and imprisonment in the county jail not less than three months.

1. MURDER BY POISONING.

The giving of the second instruction has been assigned as error. The question presented for our determination by this instruction and the argument of counsel is whether, on the facts stated therein, the defendant is guilty of...