The State v. Tucker
| Decision Date | 27 December 1910 |
| Citation | 133 S.W. 27,232 Mo. 1 |
| Parties | THE STATE v. EUGENE TUCKER, Appellant |
| Court | Missouri Supreme Court |
Appeal from Greene Criminal Court. -- Hon. Alfred Page, Judge.
Affirmed.
Perry T. Allen for appellant; Patterson & Patterson of counsel.
(1) The court erred in not instructing the jury on the whole law applicable to the case made by the evidence. State v Heinze, 66 Mo.App. 135; State v. McGuire, 113 Mo. 670; State v. Nelson, 118 Mo. 124; State v Branstetter, 65 Mo. 149; State v. Banks, 73 Mo 592; State v. Patrick, 107 Mo. 147; State v. Stonum, 62 Mo. 596; State v. Palmer, 88 Mo. 568; State v. Jones, 61 Mo. 232; State v. Taylor, 118 Mo. 153; State v. Rufus, 149 Mo. 406. Where the defendant testifies in a criminal case instructions predicated upon his evidence should be given. State v. Anderson, 86 Mo. 309; State v. Talmage, 107 Mo. 543; State v. Palmer, 88 Mo. 568; State v. Anderson, 86 Mo. 309. If the deceased was not the aggressor but had called the defendant a liar, and defendant, incensed at the insult, but without lawful provocation, willfully and intentionally shot deceased, he is guilty of murder in the second degree. State v. Gleason, 172 Mo. 259; State v. McKenzie, 177 Mo. 699; State v. McMullin, 170 Mo. 608. Insulting or opprobrious epithets may arouse the passion to such an extent that if the person to whom they are applied, acting under the heat of passion engendered thereby, kills his adversary, such provocation will reduce the killing to murder in the second degree, but they do not amount to a justification of the killing of the party who uses them. State v. Ballance, 207 Mo. 619; State v. Gartrell, 171 Mo. 516; State v. Gordon, 191 Mo. 125. The court, in a trial for murder in the first degree should define the meaning of the term "heat of passion," and should also explain to the jury the character of the "heat of passion" which will reduce the homicide to murder in the second degree and manslaughter, where the evidence authorizes instructions on such grades of homicide. State v. McKinzie, 102 Mo. 620; State v. Bulling, 105 Mo. 204; State v. McKenzie, 177 Mo. 711. The term deliberation comprehends and includes the term "heat of passion" or hot blood. The term deliberation should have been defined with explicitness and precision. The trial court nowhere in any of its instructions so defines the term deliberation. The court in order to have instructed on the whole law applicable to the case made by the evidence should have instructed the jury that if the defendant shot and killed the deceased while he, the defendant, was in a violent passion suddenly aroused by opprobrious epithets or abusive language, then such killing was not deliberate and was not murder in the first degree. State v. Ballance, 207 Mo. 617; State v. Gartrell, 171 Mo. 515. (2) The court erred in giving instruction 6. The instruction is subject to criticism because it begins with a vague and ambiguous definition of deliberation and of "heat of passion." The instruction is unfair, improper, and erroneous because it ends by singling out, commenting upon, and giving special prominence to the fact that deceased had taken up defendant's cattle and refused to deliver them to the defendant on demand therefor, and directing the jury that such refusal was not sufficient provocation to reduce the killing from murder in the first to murder in the second degree. The action of the court in directing the jury that the impounding of defendant's cattle and the refusal to deliver them on demand was not sufficient provocation for the heat of passion that destroys deliberation, was improper, because a usurpation by the court of the jury's function of finding the facts. State v. Grugin, 147 Mo. 39. This court has held times without number that insulting epithets were sufficient provocation to reduce the grade of the homicide from murder in the first to murder in the second degree. State v. Gleason, 172 Mo. 259; State v. McKenzie, 177 Mo. 699; State v. McMullin, 170 Mo. 608; State v. Ballance, 207 Mo. 607. If insulting and opprobrious epithets are sufficient provocation to reduce the grade of the killing from murder in the first to murder in the second degree, why would not the unlawful refusal of deceased to deliver defendant's cattle to him upon demand, and an offer to pay such damage as deceased claimed, be sufficient provocation to create the heat of passion that would reduce the killing to murder in the second degree? Whether the state of mind necessary to make the killing the lowest grade of murder was in fact superinduced by such provocation, and whether it actually existed at the time of the killing are questions of fact for the jury. State v. Ellis, 74 Mo. 207. (3) The court erred in giving instruction 7, which is as follows: "If you believe from the evidence that the defendant intentionally shot and killed Elizabeth Ellis, then you are instructed that there is no evidence of such provocation as would reduce such intentional killing of the said Elizabeth Ellis from murder in the first to murder in the second degree." The vice of this instruction is that it eliminates every element of murder in the first degree except that of willfulness, eliminates the element of premeditation, malice aforethought, and deliberation, and tells the jury in plain terms that an intentional killing is murder in the first degree. To constitute murder in the first degree, the elements of willfulness, deliberation, premeditation, and malice aforethought must all exist. State v. Holme, 54 Mo. 153; State v. Silk, 145 Mo. 240; State v. Gassert, 65 Mo. 352; State v. Frazier, 137 Mo. 317; State v. Fitzgerald, 130 Mo. 470; State v. Harris, 76 Mo. 361; State v. Anderson, 98 Mo. 461; State v. Underwood, 57 Mo. 40. The law presumes, in the absence of evidence to the contrary, that an intentional killing with a deadly weapon is murder in the second degree. And it devolves upon the defendant to adduce evidence to repel that presumption, unless it is repelled by evidence introduced on the part of the State. State v. Elliott, 98 Mo. 150; State v. Bowles, 146 Mo. 6; State v. Minor, 193 Mo. 597; State v. Silk, 145 Mo. 240; State v. Williams, 69 Mo. 110; State v. Young, 119 Mo. 495. Whether such a killing is deliberate and premeditated or not is a question for the jury and cannot be determined as a matter of law by the court. State v. Williams, 69 Mo. 110. A homicide though willful is not murder in the first degree unless committed with deliberation. State v. Hill, 69 Mo. 451. And an instruction is fatally defective which assumes that there can be murder in the first degree without deliberation. State v. Melton, 67 Mo. 594. All intentional homicides committed with premeditation and malice are murders in the second degree. State v. Weimers, 66 Mo. 13; State v. Erb, 74 Mo. 199; State v. Lewis, 74 Mo. 222; State v. Robinson, 73 Mo. 306; State v. Ellis, 74 Mo. 207; State v. Williams, 69 Mo. 110; State v. Eaton, 75 Mo. 586; State v. Moxley, 115 Mo. 644; State v. Lane, 64 Mo. 319. (4) The court erred in not granting the defendant a new trial because the jury were permitted to separate into parties of two and three and go through the Greene county jail. Section 2628, R. S. 1899, prohibiting the separation of a jury in the trial of a capital case, is mandatory. State v. Gray, 100 Mo. 523; McLean v. State, 8 Mo. 153; State v. Murray, 91 Mo. 95. And where such separation takes place the judgment will be reversed although it does not appear that any juror was approached upon the subject of the trial, or that there was any ground of suspicion that they were moved by outside influence. State v. Collins, 81 Mo. 109; State v. Orrick, 106 Mo. 111; State v. Steifel, 106 Mo. 129; State v. Howland, 119 Mo. 419; State v. Schaeffer, 172 Mo. 335.
Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
(1) Appellant having failed to preserve an exception to the failure of the trial court to instruct the jury on all necessary questions of law arising in the trial, he cannot now urge such failure as a ground for reversal. State v. George, 214 Mo. 270; State v. Urspruch, 190 Mo. 50; State v. Finley, 195 Mo. 211; State v. Chenault, 212 Mo. 137. The record does not contain any request by appellant for any specific instructions. There must be a specific request for additional instructions, and an objection and exception saved to the refusal of the court to give the same, before the question can be reviewed in this court. State v. Espenschied, 212 Mo. 222; State v. West, 202 Mo. 137; State v. McCarver, 194 Mo. 742; State v. Groves, 194 Mo. 558; State v. Bond, 191 Mo. 563. (2) The effect of instruction 6 simply informed the jury that the mere impounding of appellant's cows by Ellis, and his refusal to release them until the damages were paid, were not sufficient legal or just provocation to reduce the killing from murder in the first degree to murder in the second degree. It was not error so to instruct. State v. Bulling, 105 Mo. 219; State v. Barrington, 198 Mo. 102; State v. McKenzie, 177 Mo. 711; State v. Kotovsky, 74 Mo. 247. Appellant was not entitled to have an instruction on murder in the second degree. According to his own testimony at the trial he acted in self-defense, if the jury believe his story to be true; on the other hand, if what appellant said immediately after the shooting, as to why he killed Mrs. Ellis, was true, then he was guilty of murder in the first degree. State v. Neihaus, 188 Mo. 324.
From a judgment and sentence for murder in the first degree by the Greene County Circuit Court on the 5th day of May, 1909, the defendant, Eugene Tucker, prosecutes this...
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