76 Mo. 101 | Mo. | 1882
The defendant was indicted at the August term, 1880, of the Douglas circuit court for the murder of one Sampson Maggard, on the 23rd day of June, 1880. On his application a change of venue was awarded to the circuit court of Webster county, in which he was arraigned at the March term, 1882, and pleaded to the jurisdiction of the court, alleging that the change of venue was awarded before he was arraigned in the Douglas circuit court, and not on his application, and because the Douglas circuit court was not then legally organized, not having adjourned to a day certain after its adjournment on the 16th day of August, 1880. His plea to the jurisdiction was not sustained, and thereupon the defendant pleaded not guilty, and a trial was had, which resulted in his conviction of murder in the second degree, and his punishment assessed at imprisonment in the penitentiary for a term of fifteen years. From the judgment he has appealed.
The testimony on the part of the State was to the effect, that defendant, prior to the homicide, had made repeated threats against the deceased, who was his son-in-law, and whom he charged with neglect of his daughter; that he went-to deceased’s house¿ called him out, and after walking with him a short distance, drew his pistol and shot him. Eor the defense, there was proof of threats made by deceased against defendant’s life, as recently as the day before he was killed; that after he was killed, his pistol was found on the ground under his body ; and defendant
The instruction in relation to murder of the second degree is objected to, on the ground that there was no evi5. -. dence to support it. The evidence of recent threats made by deceased against defendant—that his pistol was found under his body after he was killed—the effort of the principal witness for the State, who was present and witnessed the homicide, to conceal the pistol, in connection with the testimony of the accused, warranted the court in giving that instruction.
the judgment is affirmed.