The State v. Reed

• Citation: 23 S.W. 886,117 Mo. 604
• Parties: The State v. Reed, Appellant
• Decision Date: 09 November 1893
• Court: United States State Supreme Court of Missouri

23 S.W. 886

117 Mo. 604

The State v. Reed, Appellant

Supreme Court of Missouri, Second Division

November 9, 1893

Appeal from Jackson Criminal Court. -- Hon. J. W. Wofford, Judge.

Affirmed.

J. D Wendorff for appellant.

(1) The court erred in refusing the fifth instruction asked by the defendant. The burden is upon the state to prove, beyond a reasonable doubt, all essential ingredients of the offense charged in the indictment. United States v, McGlue, 1 Curtis C. C. 1; State v. Wingo, 66 Mo. 181; State v Houx, 109 Mo. 654; Commonwealth v. McKie, 1 Gray, 61; Wharton on Criminal Evidence [9 Ed.], sec. 329; Greenleaf on Evidence [15 Ed.], sec. 49, note, and cases cited; Commonwealth v. Whitaker, 131 Mass. 224; People v. Millard, 53 Mich. 63. (2) The court erred in giving the eighth instruction asked by the state, because it did not require the state to prove premeditation. Premeditation is a necessary element of murder in the first degree. Revised Statutes, 1889, sec. 3459; State v. Curtis, 70 Mo. 594; State v. Foster, 61 Mo. 549; State v. Mitchell, 64 Mo. 191; State v. Lane, 64 Mo. 319; State v. Talbot, 73 Mo. 347; State v. Hennell, 97 Mo. 105; State v. O'Hara, 92 Mo. 59; State v. Sharp, 71 Mo. 218. (3) The court erred in declaring the law in the seventh instruction asked by the state to be that there was "no evidence tending to show the existence of any such passion or provocation." (4) The court erred in refusing to instruct the jury as to murder in the second degree.

R. F. Walker, Attorney General, Morton Jourdan, assistant, and M. K. Brown, Prosecuting Attorney, for the state.

(1) The instructions given for the state correctly declared the law. The words "malice aforethought" are equivalent to the words with "malice" and "premeditation." State v. Dale, 108 Mo. loc. cit. 207; State v. Lowe, 93 Mo. loc. cit. 574; State v. Katovsky, 74 Mo. 249; State v. Curtis, 70 Mo. 598; State v. Brooks, 92 Mo. loc. cit. 553; People v. Vance, 21 Cal. 400. The term "deliberately" contains in itself all that is meant by the term "premeditatedly." State v. Dale, 108 Mo. loc. cit. 207. (2) Where the evidence proves a defendant guilty of murder in the first degree, and the court correctly instructed upon that degree of murder in one instruction, a second instruction authorizing a conviction of murder in the first degree, which leaves out all the elements of willfulness, deliberation, premeditation and malice aforethought, is harmless, even if erroneous. State v. Bulling, 105 Mo. loc. cit. 219; State v. Anderson, 98 Mo. loc. cit. 473; State v. Patterson, 73 Mo. loc. cit. 713; State v. Holme, 54 Mo. loc. cit. 164; State v. Hopper, 71 Mo. 425; State v. Talbott, 73 Mo. 347; State v. Ellis, 74 Mo. 207; State v. McGinnis, 76 Mo. 326; State v. Snell, 78 Mo. 240; State v. Nelson, 88 Mo. 126; State v. Anderson, 89 Mo. 312; State v. Butterfield, 75 Mo. 305. Instructions need not be as technical as the indictment. State v. Pullens, 81 Mo. 387. In criminal, as in civil cases, the instructions must all be read and considered together, and when, if so considered, they properly declare the law, and are not misleading, they are not objectionable. State v. Noeninger, 108 Mo. 166; State v. Matthews, 98 Mo. loc. cit. 130; State v. Butterfield, 75 Mo. loc. cit. 305; Dougherty v. Railroad, 97 Mo. 647; Muelhausen v. Railroad, 91 Mo. 332; Noble v. Blount, 77 Mo. 239. The court properly instructed only on murder in the first degree and accidental homicide. State v. Jones, 79 Mo. 441; State v. Nugent, 71 Mo. 139; State v. Sneed, 91 Mo. 559; State v. Rider, 95 Mo. loc. cit. 484; State v. Wilson, 88 Mo. 13; State v. Bulling, 105 Mo. 220. The threats of the defendant against the deceased were admissible; the nearness or remoteness of threats to the date of the commission of the crime does not affect their admissibility or competency. State v. Glahn, 97 Mo. loc. cit. 689; State v. McNally, 87 Mo. 644; State v. Adams, 76 Mo. 355; State v. Grant, 79 Mo. loc. cit. 137; Carver v. Huskey, 79 Mo. 509; State v. Crawford, 99 Mo. 74.

OPINION

Gantt, P. J.

The defendant, Martin Reed, a negro man, was indicted on the fifteenth of November, 1890, by the grand jury of Jackson county, for the murder of his wife, Hester Reed, on the sixteenth of September, 1890, at her home on Fourteenth street in Kansas City. He has been twice convicted, under this indictment, of murder in the first degree. The trial judge, Hon. H. P. White, awarded him a new trial after the first conviction. The cause was continued at the instance of the defendant twice before he was put upon his first trial, and was continued for him for one cause and another, at the November term, 1891, the March term, 1892, and the November term, 1892. At the March term, 1893, he was awarded a change of venue from Independence to Kansas City. He was finally placed on his trial at the April term, 1893, and convicted of murder in the first degree, and sentenced to be hung. It is from this last verdict and sentence this appeal is prosecuted.

The testimony tends to prove a most heartless and atrocious murder. It shows that Hester Reed, the murdered woman, had been married to the defendant more than twenty-five years. During all these years, according to the statements of defendant himself, and the uncontradicted evidence in the case, she had made him a most exemplary wife, had borne him a family of seven children, had aided in supporting him and herself and had assisted in rearing and educating their large family of children. The testimony shows that not long before the commission of the murder the defendant had attempted to cut his wife's throat, and had only been prevented by the interference of a daughter, who happened to be present; that he had beaten his wife and driven her from her home and children, threatening to kill her if she returned; that he then, a short time after driving her from home, left home himself, and his wife, who had been sheltered by a kindly disposed neighbor, then deemed it safe to return home to her children and did so, and then applied for a divorce from defendant. When defendant heard of her application for divorce he was greatly incensed and threatened that before she should have a divorce he would kill her.

The murder was committed on Tuesday about noon. The Sunday before the murder, defendant, who was still staying away from home, went to the house where the wife and children lived, threatened and abused her; the next day (Monday), although still suffering from bodily injuries which she had received as the result of a brutal assault by him, the wife had gone out to do some washing to support her family, and when she was away defendant again came to the house searching for her, still abusing and threatening her. On the forenoon of the next day, it being Tuesday, the day on which the homicide was committed, he came again to the house, and finding her at home renewed his abuse and threats. As soon as he left that forenoon, the deceased, alarmed for her safety, taking one of their children, a son named Junius, with her, went to the justice of the peace to get out a warrant against defendant to put him under bonds to keep the peace; returned, and arrived at her home about noon on this day.

Defendant heard of this, and became greatly incensed thereat, and immediately went to the place where he had been sleeping, got the pistol with which the murder was committed, and went to the home of his family. The deceased, Hester Reed, had just returned from her mission to the justice of the peace; the rest of the family were down in the basement eating their dinner; one daughter, almost grown, was away at school; two of the children, the youngest, were playing in an adjoining room; another one, Mary McHenry, a married daughter, had just left, taking her husband, who was at work, his dinner. The deceased was sitting in the front room, talking with a neighbor woman, Kate Moore, when defendant entered with his pistol in his hand, walked up to the deceased, addressed vile and abusive language to her, exclaiming, "you old bitch, you have served a writ; I will serve a writ on you, and serve it well," drew the pistol down upon her, and seized hold of her. She struggled to escape from him, fell upon the floor, and then, while she was lying upon the floor, upon her right side, endeavoring to arise, defendant, standing back of and above her, in a line with her body, about four feet from her, fired two shots into her prostrate body; one entering the left arm near the shoulder, ranging downward, and coming out between the elbow and forearm; the other shot, the fatal one, entering the back of her left shoulder, and ranging downward and inward, passing through the lung, heart and liver, and lodging in the walls of the abdomen. The deceased struggled up, and, staggering out of the door on the sidewalk, died almost instantly.

Defendant then turned and grappled with the mother of the deceased, who had rushed up the stairway from the basement upon hearing the first shot, and endeavored to shoot her also; but she struggled from him, escaped into an adjoining room, barred the door, and, jumping from an open window, escaped. Just before she reached the sidewalk she heard another shot defendant had gone into the next room, and, placing the pistol to his own breast, had fired, the ball entering close to the heart; and when the policeman entered, a short time after, the defendant was found, lying on the floor in the inner room, with a smoking pistol clutched in his hand, unconscious from the loss of blood and the wound in his breast. The defendant had put into execution the threats which he had repeatedly made before, of his intention to kill his wife. He was taken to the city hospital, and from there, afterward, when...