State v. Walker

• Decision Date: 30 April 1883
• Citation: 78 Mo. 380
• Parties: THE STATE v. WALKER, Plaintiff in Error.
• Court: Missouri Supreme Court

78 Mo. 380

THE STATE

v.WALKER, Plaintiff in Error.

Supreme Court of Missouri.

April Term, 1883.

Error to Stoddard Circuit Court.--HON. R. P. OWEN, Judge.

REVERSED.

There was testimony that on the evening of the 4th day of November, 1880, the deceased with James and Henry Layton drove up to the drug store of P. G. Wilson in Bloomfield, where were assembled about eight or ten persons; that deceased and James Layton dismounted and went into the store, when deceased hollowed “Hurrah for Garfield,” and some one hollowed “Hurrah for Hancock;” that deceased then said “I am a Garfield man, but I don't want this noise;” that defendant replied “I will hollow when and where I please;” that deceased said “I am here to keep order, and you will keep still or get out;” that defendant then said “I can get out of your d--d house, come out and I'll settle with you;” that deceased said “I do not want a fuss;” that defendant again hollowed “Hurrah for Garfield;” that deceased then came from behind the counter and said “Boys, help me to put these men out;” that defendant and James Layton were then forced out of the house; that shortly afterward a flash of a pistol was seen in the direction of the defendant, and deceased stepped back and said, “Boys, I'm shot;” that defendant then made a step or two toward deceased, and struck at him with his left hand, his right hand being dropped down and behind him, and said “Show me the d--n s-- of a b-- who put me out of the house;” that a bystander, named Cole, exclaimed “Don't strike him, for you have shot him now;” that Stephen Elliott was in an office, across the street from the drug store, when the shot was fired; that he started immediately to go to the place of the shooting and met a man coming from the drug store, whom he caught and held down; that this man said “Please let me go, I did not shoot him;” that about this time a wagon drove off; that Elliott heard voices saying ““Walker shot the man,” that he then let loose the man he had, and tried to catch the team; that the night was dark and rainy.

The instructions following were asked and given on behalf of the State:

1. The court instructs the jury that if they believe from the evidence that the defendant, Alfred Walker, did in Stoddard county and State of Missouri, on or about November, 1880, willfully, deliberately, premeditatedly and with malice aforethought shoot and kill one Robert White in Stoddard county, Missouri, as charged in the indictment, they ought to find him guilty of murder in the first degree. Willfully, as here used, means intentionally and not accidentally. Deliberately, as used in this instruction, means done in a cool state of the blood, that is, not in a heat of passion caused by a lawful provocation. Premeditatedly means thought of beforehand, any length of time however short, even for a moment, length of time not being material. Malice signifies a condition of mind, an 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.

2. One who uses a pistol or other deadly weapon by which death is produced with a manifest design so to use it, with sufficient time to deliberate and fully form a conscious purpose to kill, without having at the time of killing reasonable cause to apprehend immediate danger of personal violence to himself, unless he so killed his enemy, is guilty of murder in the first degree. And if the jury believe from the evidence that defendant, Albert Walker, so shot and killed the deceased, willfully, deliberately, premeditatedly and of his malice aforethought, as those terms are defined in the first instruction, then they should find him guilty of murder in the first degree. And if the defendant had time to think before he so shot and killed the deceased and did intend for a moment, as well as for an hour or a day, then the killing is willful, deliberate and premeditated, and when human life is so taken with a pistol or other deadly weapon likely to produce death, then the malice requisite to constitute such killing murder will be presumed, unless the defendant is shown to have had reasonable cause, at the time he so shot and killed the deceased, to apprehend immediate danger of great personal injury from the deceased, and that there was then immediate danger of such design being accomplished.

3. If the defendant shot and killed the deceased with a pistol, as defined by the first instruction, then there is no murder in the second degree in the case, but the offense, if proven, would be murder in the first degree, and the jury should so find.

4. Murder in the second degree is the wrongful killing of a human being, with premeditation and malice aforethought, but without deliberation. It is where the intent to kill is formed and executed in a heat of passion, executed the instant it is conceived, or before there has been time for the passion to subside; and if the jury are satisfied that the defendant did, with malice aforethought, in the manner and by the means charged in the indictment, willfully kill the deceased, Robert White, and the same was done without deliberation, then you ought to find the defendant guilty of murder in the second degree, and assess his punishment in the penitentiary for any period of time not less than ten years.

The instructions following were asked and given on behalf of the defendant:

1. Before the jury can find the defendant guilty of murder in the first degree, the State must prove beyond a reasonable doubt that the defendant shot and killed the deceased, Robert White, and that he did the killing deliberately, premeditatedly and of his malice aforethought; and unless the guilt of the accused has been so proven, there is no murder in the first degree, and the jury should so find.

2. Before the jury can find the defendant guilty of murder in the second degree, the State must prove beyond a reasonable doubt that the defendant shot and killed the deceased, and that the same was done with malice aforethought and premeditation.

4. Evidence is direct and circumstantial. Direct evidence is that which directly proves or disproves, if believed, the fact in issue. Circumstantial evidence is where the evidence tends to prove or disprove some collateral fact which, if found to be true, tends more or less to prove or disprove the controverted fact. And where it is attempted to establish the guilt of an accused person by circumstantial evidence only, the circumstances indicating guilt should not only be consistent with his guilt, but should be inconsistent with any other reasonable conclusion, and unless the jury find the circumstances establishing the guilt of the defendant to have been so proven, they will acquit.

5. The jury are the sole judges of the weight and value of the evidence, and, in deciding what credit is to be given to the statements of any person who has testified upon the trial, it will be proper to consider the intelligence of the witness, the interest he may feel, if any, the opportunities for observing and knowing the facts about which he speaks, the probabilities or improbabilities of his statements, with any other circumstance calculated to add to or detract from the credit due his testimony; and if satisfied that any witness has willfully testified falsely to any material fact, the jury will be at liberty to disregard the whole of the evidence of such witness or...