State v. Wilson

• Citation: 88 Mo. 13
• Parties: THE STATE v. WILSON, Appellant.
• Decision Date: 31 October 1885
• Court: United States State Supreme Court of Missouri

88 Mo. 13

THE STATE

v.WILSON, Appellant.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Lafayette Criminal Court.--HON. JOHN E. RYLAND, Judge.

AFFIRMED.

A. J. Hall, William Young and R. A. Hicklin, for appellant.

The court committed error in refusing to give an instruction on murder in the second degree. State v. Banks, 73 Mo. 592; State v. Wilson, 85 Mo. 134.

B. G. Boone, Attorney General, for the state.

The evidence did not authorize an instruction on murder in the second degree. In reversing the case before, the court did not hold that the trial court had erred in failing to give an instruction for a lower grade of homicide than charged in the indictment, but that “the instructions given recognized and allowed a finding in a lower degree than murder in the first degree, but failed to define the lower grade of the crime.”

John S. Blackwell also for the state.

(1) There was no evidence authorizing an instruction to be given in this case for murder in second degree, and it is not error to refuse to give an instruction for murder in the second degree where the evidence does not show the commission of that grade of offence. State v. Collins, 81 Mo. 652. (2) Instructions should be based on evidence, and if the evidence made out a case of murder in the first degree, on the first trial of this case, as declared by this court, and if the evidence be the same or stronger now than on the first trial, then an instruction for murder in the second degree, or for any less offence was improper. State v. Little, 67 Mo. 624; State v. Bailey, 57 Mo. 131; State v. Harris, 59 Mo. 550. (3) Where the evidence shows that the offence was either murder of the first or second degree, it is not error to refuse instructions as to manslaughter. Then it must and does follow, in reasoning from the same legal principles and authorities, that where the evidence plainly shows (as it does in this case, and as has twice been found by the trial court, and once found and emphatically declared by this court) that the offence was murder of the first degree, it was not error to refuse an instruction for murder in the second degree. State v. Snell, 78 Mo. 240; State v. Kilgore, 70 Mo. 546; State v. Starr,38 Mo. 270; State v. Schoenwald, 31 Mo. 147; State v. Jones, 79 Mo. 441.

NORTON, J.

The defendant was tried at the October term, 1885, of the circuit court of Lafayette county and convicted of murder in the first degree for killing one Jennie Standford, from which he has appealed. This cause was before us at our last April term on a like appeal from a like judgment of conviction, and was reversed upon the ground that the court gave an instruction recognizing the right of the jury to find defendant guilty of some grade of homicide below murder in the first degree. There was nothing said in the opinion as to the grade of homicide below murder in the first degree to which the evidence might apply; but the opinion contains the following language: “The crime of which defendant stands convicted, if testimony to that effect from all the witnesses except defendant be taken as true, and the nature, number and direction of the gunshot wounds be considered, it was an atrociously brutal murder, without palliation or excuse. The testimony of the defendant, in some particulars, tended to show circumstances extenuating the offence; but when his whole testimony is examined, no possible doubt can arise as to the existence of his guilt in the degree affirmed by the verdict of the jury.” State v. Wilson, 85 Mo. 134. Upon the cause being remanded and coming up for trial, the criminal court eliminated and did not give the instructions condemned by this court in its opinion, but only gave instructions relating to the crime of murder in the first degree, and refused to instruct the jury as to murder in the second degree, and the refusal of the court to give this instruction is the only ground of error relied upon by counsel to reverse the judgment.

The evidence upon the second trial is substantially the same as that given on the first trial, except on the second trial the case of the state was strengthened by the evidence of George Bullard, who was not examined as a witness on the first trial and who testified that on the evening before the killing, or at least within two or three days before the occurrence he heard defendant say: “Jennie, the damned bitch, had gone back on him; that he had one hundred and fifty dollars and was going to leave the county and if the damned bitch didn't behave herself he would shoot her.” With the opinion of this court before the trial judge as a guide for him in the trial, though reversed because of an instruction being given in the former trial, recognizing the right of the jury to find the defendant guilty of some other grade of homicide than murder in the first degree, without stating the grade of homicide to which this evidence applied, inasmuch as this court in the opinion reversing the judgment in the former trial did not intimate or suggest any grade of homicide below murder in the first degree which the evidence tended to establish, and inasmuch as the trial judge had to look to the opinion for guidance in conducting the trial, and looking at it saw that this court, after considering the whole evidence of defendant, declared that no possible doubt could arise as to the existence of defendant's guilt in the degree affirmed by the jury, what else could the trial judge do but to confine the attention of the jury in his instructions to the crime of murder in the first degree, that being the crime of which we said from the whole of his evidence there could be no possible doubt of his guilt? Suppose the court had ignored this declaration, and given an instruction for murder in the second degree, and the defendant had been convicted and appealed to this court, could he not have...