71 Mo. 425 | Mo. | 1880
Lead Opinion
Defendant jointly with one Earnest and Robertson, was indicted in the Cedar circuit court for the murder of Samuel O. Ham. At the October term, 1879, ■of the circuit court of Dade county, to which the cause, as to Hopper and Robertson, was removed on change of venue, there was a trial, which resulted in the acquittal of Robertson, and the conviction of- Hopper of murder of the first degree. Erom the judgment against him be has appealed to this court.
Defendant also complains that Mrs. Ham was allowed to testify to a conversation between the three men and her grand-children, when, from her own story, it appeared that she was then at the cane-mill, some distance away, and did not pretend to hear the conversation. There is no foundation in fact for this complaint. Mrs. 11am stated that she and Mr. Ham “• started down to the molasses-mill to get-some wood. Just then three men rode up and met the children at the gate,” when the conversation alluded to occurred. They were not at the mill, but had started to go
Nor was there error in overruling the motion to discharge Robertson.
The 'criticism by defendant’s counsel of the tenth, thirteenth, fourteenth, fifteenth and sixteenth instructions given for the State, is without merit.
The sixth and seventh instructions, asked by defendant and refused, were substantially given in the ninth for the State, and were, therefore, properly refused.
Section 1654 provides that, “ any person found guilty of murder in the second degree, or of any degree of manslaughter, shall be punished according to the verdict of the jury, although the evidence in the case shows him guilty of a higher degree of homicide.” If a person be indicted for murder, and under the instructions of the court the jury find him guilty of a lower degree of homicide, he
This court has held that if one be found guilty of the second degree of murder, it is an acquittal of the higher degree, and although the judgment be reversed, on his appeal, he cannot again be put upon his trial for murder of the first degree. The legislature, if it see proper? can enact otherwise, and thus accomplish what was probably intended by the amendment to sections 1 and 3. If the evidence against the accused prove only murder of the first degree,.and he be convicted of the second degree, and the judgment be reversed because instructions were given in relation to murder of the second degree, it virtually amounts to his acquittal of murder of either degree, because when again put upon his trial, if the evidence be the same, he cannot be convicted of murder of the first degree because acquitted of that cxdme by the former verdict, nor of murder of the second degree because the evidence would not warrant instructions on that degree of mux’der.
The evidence in this cause against Hopper was substantially the same as was introduced in that against Seth Earnest The only question was in regard to the identification of the accused parties with those who committed the murder. No question whatever- that it was a coldblooded, brutal, dastardly murder, and the jury having found that defendant was one of the three who committed it, and no material error having occurred in the progress of the trial, the judgment is affirmed.
Concurrence Opinion
We concur in affirming the judgment, but we do not concur in the remarks in