At the September adjourned term 1878, of the circuit court of Pike county, the defendant was indicted for the murder of James Johnson on the 15th day of September, 1878. At the ensuing March term of said court he was tried, found guilty of murder in the first degree, and sentenced to be hanged. Erom the judgment he has appealed to this court.
The first instruction defined murder in the first degree, but no instruction was given properly defining murder of tlie second degree. The fifth instruction for the State was as follows: “If the jury be
The third instruction for the State was also erroneous. It was as follows: “If you find that the defendant did willfully draw a pistol and shoot and kill " . , , T , j ames J ohnson simply because said J ohnson used words of reproach towards him, and that he thought of the killing any length of time, however short, before he shot Johnson, the offense is murder in the first degree.” This instruction declares a willful killing to be murder in the first degree, ignores the element of deliberation, and is, therefore, in conflict with what we held in the State v. Wieners, supra; The State v. Mitchell, 64 Mo. 192, and cases there cited. The fact that an instruction was given by the court, properly defining murder in the first degree, did not cure the error in the third instruction. The State v. Mitchell, supra; The State v. Dearing, 65 Mo. 532.
The second instruction was calculated to mislead the jury. It declared that: “ Provocation, to be sufficient to mitigate or extenuate homicide, as applicable to this ease, should amount to personal violence or injury to the defend
The sixth instruction was also erroneous. It declares that: “ In order to acquit the defendant upon the ground of self defense, the defendant must show to the reasonable satisfaction of the jury, that he killed the deceased in the lawful defense of his person,” &c. In the State v. Wingo, 66 Mo. 181, it was held that the burden of proving defendant’s guilt continued upon the State from the beginning to the termination of the trial, and that all that was required of the defendant, to entitle him to an acquittal, was to-introduce evidence of the justification, excuse or mitigation relied upon by him, sufficient to create, in the minds-of the jury, a reasonable doubt of his guilt. The State v. Alexander, 66 Mo. 158. The instruction in question required the defendant, by a preponderance of evidence, to establish the facts relied upon by him as constituting his excuse, or justification, or as mitigating or extenuating the’crime. Nor was there any instruction declaring to the jury that if, upon the whole case, they had a reasonable doubt of defendant’s guilt, they should acquit him. • In the Wingo case it was held that such an instruction would cure the error of the sixth instruction. There was an instruction in regard to a reasonable doubt, given for the defense, but
Reversed.