90 Mo. 467 | Mo. | 1886
Defendant was indicted in the criminal court of St. Louis, at the May term, 1885, for murder in
The testimony of the wife’s said sister and mother, as to the immediate facts and circumstances of the shooting, is, in substance, the same, and about as follows: That when defendant met his wife there in the morning, he insisted she should live with him again, which she refused to do ; that he went away and returned several times, perhaps, in the course of the forenoon, and that, in one of these parleys he told her that if she would not live with him, she should not live ; that he came in, the last time, about noon, with his hands in his overcoat pocket, and was standing in front of the mantel piece, when his wife, Eliza, walked up to him and asked him, “ Dan, what are you going to do with that pistol; ” that he replied, “I haven’t any pistol;” that she then slapped her hand on his overcoat pocket, and said, “Aha, I knew you had that pistol,” and turned away from him to the machine ; that defendant then said, walking up to her, “ I aint going to do anything to you, I tell you my word is my bond ; ” that she leaned her back against the sewing machine, and turned to him and said : “You -can’t fool me,” and as she said this, or immediately thereafter, he pulled the pistol and shot her. After the shooting, defendant, with the pistol in his hand, ran out, back through the alley, at the end of which he was met by the witness, Robinson, who had heard the report of the pistol, and who seized the defendant and held him until the officer came up and took the pistol out of his hand and arrested him.
The defendant was the only witness in his own behalf, and his statement and claim is, that the shooting was entirely unintentional and accidental; that there had been no quarrel between them previously, of any consequence, and that they had lived together on very good terms. He testifies that the morning the shooting occurred he had been down town, and came back for
The attorney for the state read in rebuttal, and solely for the purpose of showing contradictory statements b y defendant, the application for a continuance made and sworn to in said cause by him at a previous term of the court, in which he stated that one Perkins was present at the time of the shooting, and that he expected to prove by him that at the time the shooting took place, the pistol was in the hands of the deceased, and that she was endeavoring to shoot him, and that while he was trying to protect himself, by pushing the pistol from his person, it went off and inflicted the wound which caused the death. This evidence, which is the substance of that in the record, needs little comment, if any, from us. We can say no more, and perhaps should say no less, than that it shows no provocation or excuse, whatever, for this atrocious deed. The defendant’s explanation of the shooting was disbelieved by the jury. We may remark that there is no brief, or argument, or assignment of errors filed in the cause in defendant’s behalf, in this court, and that we are, therefore, not advised as to the particular grounds, if any, upon which a reversal of the judgment below is claimed.
An exception was taken to the overruling of the application for a continuance, upon the admission by the state, that the desired witness would, if present, testify as therein stated. The court’s action, in this behalf, is not now before us, as the same was not urged in the
The instructions which the court gave of its own motion, we think, cover the case made by the evidence. The first instruction defines murder in the first degree,' and says that to constitute that crime it is necessary that ’ the killing should have been done feloniously, wilfully and deliberately, premeditatively and with malice aforethought, and that if either of these elements is lacking, the crime is not murder in the first degree. It also further defines these terms thus used in the indictment and instructions. The second is merely as to the form of the verdict, if they found defendant guilty. The third is that if the jury find from the evidence that the killing was accidental, they should acquit. The fourth is the usual one as to the credibility of witnesses. The-fifth is that the defendant is a competent witness in his own behalf, and that the jury may consider the fact that he is testifying in his own favor in determining his credibility. The sixth, and remaining instruction, is upon the presumption of innocence, and defining a reasonable doubt, and is in the usual and approved form.
The case seems to have been well tried under proper instructions, and finding no error in the record, the judgment of the criminal court is, therefore, affirmed.