State v. Jones

78 Mo. 278 | Mo. | 1883

Sherwood, J.

The defendant, indicted for murder in the first degree, for killing Sam’l H. Blair, was found guilty of murder in the second degree, and his punishment assessed at ten years in the penitentiary. The usual instructions, as applicable to the facts of the case, were given on the part of the State, and we have been able to discover nothing objectionable in them, and whatever lack there was in the instructions given for the State was fully supplied by such as were given on behalf of the defendant.

i. mttkdek ; instructions: self-defense. The fourth instruction for the State is certainly not obnoxious, because it told the jury that if the defendant willfully shot and killed 'the deceased, that orcjer to be justified on the ground of self-defense, he would have to establish such defense from the whole evidence to the reasonable satisfaction of the jury. If a defendant sets up any defense, it of course belongs to him to establish it to the satisfaction of the jury, in order to succeed on that particular issue, though of course his failure thus to succeed would not authorize his conviction if the jury, from a review of the whole case, had a reasonable doubt of his guilt, and the usual instruction as to such doubt was given. When the State proves that a defendant did the killing, with a deadly weapon, this, without more, under our rulings, makes out a prima facie case of murder in the second degree, and any matter of excuse, justification or extenuation of the offense, rests with the accused. Kelley Crim. Law, § 242; State v. Underwood., 57 Mo. 40; State v. Holme, 54 Mo. 153; 1 Bishop Crim. Prac., §§ 1050, 1066.

2--:-. In reference to the seventh instruction asked by the defendant, hut refused by the court, it was properly refused, for this reason if no other, that it was substantially given in the sixth instruction given on his behalf, as follows : “ That while the right of self-defense does not imply the right of attack, so as to avail the defendant in case he sought and induced a difficulty with the deceased, for the purpose of affording a pretext to wreak his malice, yet if on the occasion of the shooting and death of the deceased, the defendant met the deceased with the design of an amicable arrangement of their affairs, and not of doing bodily harm or injury to the deceased, and that without defendant’s making any attempt to inflict any such injury or harm, the deceased assumed such attitude or appearance as under the. circumstances to furnish defendant reasonable ground to apprehend a design to take his life or do him great bodily harm, and that there was reasonable cause to apprehend immediate danger of such design being accomplished, and that he fired the fatal shot and killed the deceased to prevent him from accomplishing such design, then, under the law, the killing was justifiable, although in fact such appearance was false, and there was in fact neither design to do injury to defendant nor danger of its being done.” This instruction is certainly as broad as the defendant could possibly ask, and fully as broad as that authorized by the State v. Eaton, 15 Mo. 586.

The case of the State v. Zumbunsen, decided last term, shows and is decisive of the immateriality of the statement made by the counsel for the State.

Eor these reasons we affirm the judgment.

All concur, except Henry, J., dissenting.