74 Mo. 247 | Mo. | 1881
At tbe October term, 1878, of the St. Louis
The facts of the case are that the defendant was enamored of the deceased, paid her some attention, and became jealous of the attention paid her by another, and, enraged by her refusal to accompany him to the St. Louis fair grounds, procured a pistol, three or four days before the homicide, and, on that evening, placed himself at the fence, in front of the house in which deceased was employed as a servant, and when, as was her custom in the evening, known to the defendant, she came from the hoc c to go to a saloon near by for a pitcher of beer, in company with Anna Moody, he followed them a short distance, and sat down on the sidewalk by a fence, where he remained until the girls returned on their way home, and as they approached Mm, he arose, took hold of the deceased, and remarking, “Is that you, Augusta?” fired the fatal shot, pushing away Anna Moody, who was walking by her side next the fence.
The sole defense relied upon was insanity, and the complaint is that the instruction on that subject, given by the court, was erroneous, and that the court gave no instruction with regard to murder in the second degree, and incorrectly defined the term ‘‘deliberation.”
As there was no evidence in this case of any such provocation or heat of passion, the error was harmless. State v. Talbott, 73 Mo. 347; State v. Erb, ante, p. 199. Nolis there any conflict between this case and the case of Matt. Lewis, ante, p. 222. The judgment of the court of appeals,
The case of the State v. Simms, 68 Mo. 306, and 71 Mo. 538, did not hold that evidence tending to prove the accused insane warranted an instruction-on murder in the second degree. From the immediate facts attending the commission of the homicide in that case, apart from any evidence of insanity, the jury might well have found that the element of deliberation was absent.
If Notovsky was not insane; if he was capable of distinguishing between right and wrong, he was, under the decisions of this court, guilty of murder of the first degree. It was a murder committed by “ lying in wait,” and if the defendant was not insane, the crime cannot be otherwise classified than as murder of the first degree. This has been uniformly held to be the law in this State in every case in which the question arose, and we think correctly. Baldwin v. State, 12 Mo. 223; State v. McConnell, 49 Mo. 282, 291. There was not a particle of testimony which would authorize the court or jury to consider any other question than that of defendant’s guilt or innocence of murder of the first degree. If insane, he was guilty of no crime, and the jury having passed upon that question, Under instructions on that subject which this court holds to bo proper, we cannot review their finding on the conflicting evidence, and the judgment is affirmed.