77 Mo. 136 | Mo. | 1882
The defendant waá indicted for murder in the first degree, at the November term, 1881, of the criminal court of Jackson county, for killing one William Mulholland. He was tried at the January term, 1882, of said court, which resulted in his conviction for murder in the second degree, his punishment being assessed at imprisonment in the penitentiary for life. His motion for new trial being overruled he brings the case to this court on appeal, and assigns for error the action of the court in admitting and rejecting evidence and in giving and refusing instructions.
It is argued by defendant’s counsel that the court erred in admitting the evidence of defendant’s wife, (she being dead,) given before the justice of the peace on the preliminary examination of defendant, and before the court at Independence on a former trial of defendant, inasmuch as it did not satisfactorily appear that she testified willingly. The question thus presented cannot be considered by us, for the reason that it does not appear from the record that the evidence objected to was admitted or received on the trial, but on the contrary, it is stated expressly in the bill of exceptions that her evidence does not constitute any part of the transcript.
The court, on behalf of the State, gave instructions for murder in the first and second degree, which it is unnecessary to advert to further than to say that the instructions as to murder in the second degree, of which oifense defendant was convicted, were in strict compliance with the rulings of this court in the cases of State v. Curtis, 70 Mo. 594; State v. Harris, 73 Mo. 287. Nine instructions were given for defendant which put the law of the case to the jury in as favorable a light as possible for him. Upon examination of the whole record, we have discovered noth