276 Mo. 378 | Mo. | 1918
Defendant was charged, by an information filed in the circuit court of Audrain County, with "murder in the second degree, for that he had, as it was alleged, shot and killed one A. E. Critch field. Upon trial, he was convicted of manslaughter in the fourth degree, and his punishment assessed at imprisonment in the State Penitentiary for a term of two years. Prom this conviction, after the usual motions, he has appealed.
The facts, as the record discloses them, are peculiarly meager. Defendant at the time of the alleged commission of the homicide was about eighty years of age. He had been married three times. His third wife, with whom he was living at the time of the homicide, was about forty or forty-five years old, and in popular reputation, upon the phase of virtue, not above suspicion. The deceased, Critchfield, was sixty-four years of age, married, but'separated and living apart from his wife.
On the evening of January 16, 1917, the' dead body of the deceased was found in the grounds of one of the public schools of the City of Mexico, a little over one hundred feet from the rear of the premises occupied by defendant and his wife. There were two gunshot wounds in the body of the deceased, either of which was fatal, but one of which had penetrated the heart, or the great blood-vessel which ascends from the heart, evidently producing instant death. Upon being arrested defendant confessed that he had shot and killed
Defendant did not take the stand upon the trial and offered no testimony whatever thereon, save and except testimony touching his previous good character, which was shown to have been good. No competent evidence was offered from any source as to the motive for this homicide, though some evidence was permitted to be offered upon the trial, consisting wholly of hearsay, which seemingly throws some light upon the motive for the killing. One witness for the defendant was permitted to say that in a conversation with the wife of defendant, the latter admitted that a short time before the killing of deceased by defendant, she and deceased had been engaged in sexual intercourse in a little coal house situate at the rear of the premises occupied by defendant and his said wife. This coal house was, as forecast above, a little more than one hundred feet from the point where the body of deceased was found. There is no competent evidence in the case, however, that deceased and defendant’s wife were shortly before in the act of adultery, and none of any character that defendant caught deceased and his wife engaged in sexual intercourse at or just immediately prior to the homicide, or even that he knew they had been so engaged. Upon this point there was no testimony offered and no evidence whatever, except such attenuated inference as might arise from the hearsay testimony of the fact of sexual intercourse and from the nearness of the place thereof to the point at which the body of deceased was found.
Notwithstanding this condition of the record upon this question, the court instructed the jury upon manslaughter in the fourth degree, just as if there had been competent evidence of this defense.
Such other facts as will serve to make clear the points which we find it necessary to discuss, will be set out in connection with the expression of our views thereon.
In this contention counsel for 'the State are in error. The giving of this instruction is specifically urged as error. Defendant’s motion for a new trial upon this point says: “The court erred in giving
instruction number 8, peremptorily instructing the jury that there was no evidence to show defendant was justified in killing the deceased.” (Italics ours). While the number of this instruction is five and not eight, as the assignment of error in the motion for a new trial has it, we ought not, in view of the verbal sufficiency of the assignment, to refuse to consider it on account of the mistake in setting out the number thereof, which mistake is from the context palpably a mere clerical misprision. The writer of the motion for a new trial had, in the clause thereof immediately preceding the assignment now under review, * complained of an instruction numbered eight on self-defense. It is plain that coming to the assignment of error bottomed on the giving of instruction five, counsel inadvertently wrote eight, instead of five, as was intended by him. Of course, the fact of inadvertence would not save the point; it is saved only by the definite setting out of the substance of the instruction. It is clear that we are not warranted in refusing to review this assign* ment of error for any lack of specific averment of it in defendant’s motion.
The court nisi might have told the jury that the term “heat of passion” as used in the instruction means a heated state of the blood which negatives the existence of both malice and deliberation and which is aroused and exists in contemplation of law whenever a homicide is committed so immediately following a lawful provocation offered by the deceased to the accused as to afford no cooling time or any sufficient opportunity for cool judgment to resume its sway over the mind of the accused. But instead of doing this, thus abstractly the learned trial judge saw fit to tell the jury, in plain words, that if they found certain named facts (which defendant contends were shown in evidence) these facts were such as to reduce the offense'to manslaughter in the fourth degree. Manifestly, by this defendant had the benefit of every fact in the case, which in contemplation of law might have aroused heat of passion, and if this was an error (for that there was no evidence of the facts on which it was predicated), it was one committed in defendant’s favor, for which he may not be heard to complain. If so it be that by the interpola
For the error noted let the case be reversed and remanded.