95 Mo. 97 | Mo. | 1888
Defendant was indicted in the St. Louis criminal court at its May term, 1885, for murder in the first degree for killing one Annie Tisch in the city of St. Louis, in March, 1885. After repeated continuances, he was put upon his trial at the March term, 1887, of said court, and was convicted of murder in the first degree. The case is before us on defendant’s appeal, and it is insisted that the court erred in giving instructions, and in order to a proper disposition of the objections relied upon, reference to the evidence is necessary.
Joseph Landgraf, a brother of defendant, testified that, during the day of the night on which deceased was shot, defendant came to where he was at work, and during the conversation said : “Ihave made the motion before already to kill the girl; I am going to kill her to-nighthaving requested his brother to let him bring-deceased to his house and being refused; “if you don’t let me 'take her to your house I will take her to an assignation house and I will kill her there.”
The following statement, made by deceased, in the-presence and hearing of defendant, the day after she-was shot, was put in evidence: “Annie Tisch is my name'; I am twenty-one years of age; this man- before-me I identify as Henry Landgraf; he is my lover; he is the man who shot me last night, whether with a revolver or anything else I don’t know ; I stayed at Mrs. Duffy’s,,
After deceased was shot she was removed to the hospital, where it was ascertained that the bullet had entered the skull just above the eye, but in consequence of the soreness of the wound, excitement and resistance of the deceased to the surgeon’s efforts to locate the bullet, its location could not be determined. After-wards, on the twelfth of March, she was placed under the influence of an anaesthetic, and an operation was performed and an effort made to locate the bullet by probing. After that deceased began to sink and died on the fifteenth of March, ten days after she was shot. A post-mortem examination Avas held, which resulted in showing that the bullet had lodged between the skull and brain ; that under it a clot of blood and water had formed which produced compression of the brain, from which she died.' There Avas some evidence tending to show that the wound was not necessarily mortal, and that death might have resulted from the operation performed in probing for the bullet.
Among others, the defendant assigns for error the action of the court in giving the following instruction :
“If you believe and find from the evidence that defendant feloniously, wilfully, deliberately,, premeditatedly, and of his malice aforethought, shot Annie Tisch and inflicted on her a dangerous wound on some vital part, as charged in the indictment, and that such*102 shooting and wounding caused the death of said Annie Tisch, you should find the defendant guilty of murder in the first degree; notwithstanding you may also believe and find that unskilled medical treatment aggravated such wound, and that deceased might have recovered if greater care and skill had been employed in treating her.”
It is argued that this instruction denies to defendant the benefit of the defence, that the death of deceased was produced or occasioned by other causes than the wound. We are unable to perceive wherein the instruction does this. On the contrary, it requires the jury to find, before they can convict defendant, that the wound was a dangerous one, inflicted on some vital part of the body, and that it caused the death of deceased.
The direction of the instruction, that if they so found it mattered not that they might also believe and find that unskilled medical treatment aggravated such wound, and that deceased might have recovered if greater care and skill had been employed in treating her, finds abundant support in the authorities. In 3 Green-leaf 5 s Evidence, section 139, it is said : “If death ensues from a wound given in malice, but not in its nature mortal, but which being neglected or mismanaged the party died, this will not excuse the prisoner who gave it; but he will be guilty of the murder, unless he can make it clearly and certainly appear that the maltreatment of the wound or his own misconduct, and not the wound itself was the sole cause of his death, for if the wound had not been given the party would not have died.” So in 2 Bishop’s Criminal Law, it is said in section 638, that the doctrine is established that “if the blow caused the death, it is sufficient, though the individual might have recovered had he used proper care himself, or submitted to a surgical operation to which he refused submission, or had the surgeon treated him differently ; ’ ’ and in section 639 it is said : “In law, if the person dies
In the well-considered case of Commonwealth v. Hackett, 2 Allen [Mass.] 141, after a review of the authorities bearing upon the question, it is said : “ The well-established rule of the common law would seem to be that if the wound was a dangerous wound, that is, calculated to endanger or destroy life, and death ensued ¡ therefrom, it is sufficient proof of the offence of murder ! or manslaughter, and that the person who inflicted it is-| responsible, though it appear that deceased might have' recovered if he had taken proper care of himself, or submitted to a surgical operation, or that unskilful or improper treatment aggravated the wound or contri- ' buted to the death, or that death was immediately caused Í by a surgical operation rendered necessary by the con- * dition of the wound. * * * The principle on which this rule is founded is one of universal application, and lies at the foundation of all our criminal jurisprudence. It is that every person is to be held to contemplate and be responsible for the natural consequences of his own acts. If a person inflicts a wound with a deadly weapon in such manner as to put life in jeopardy, and death follows as a consequence of this felonious and wicked act, it does not alter its nature or diminish its criminality to prove that other causes cooperated in producing the fatal result. Indeed it may be said that neglect of the wound or its unskilful and improper treatment, which were of themselves consequences of the criminal act which might follow in any case, must in law be .deemed to have been among those which were in contemplation of the guilty party, and for which he is to be
The court instructed the jury that premeditatedly meant, “thought of beforehand any time, however short.” This definition is claimed to be erroneous, as the word has heretofore been defined to mean, “thought of beforehand any length of time, however short.” The omission of the word length from the instruction did not change the meaning of the word as heretofore usually defined, and the instruction as given was as favorable to defendant with the omitted word left out as if it had been inserted, and was in no way calculated to mislead the jury or prejudice the defendant.
The court defined deliberately to mean, “done in a cool state of the blood, and not done in a heat of passion engendered by a lawful or just provocation, and the court instructs you that in this case there is no lawful provocation.” The record does not disclose any evidence either of a lawful or just provocation. It shows that the design to kill deceased was deliberately formed and meditated upon, and that the deceased was shot in pursuance of and in the execution of this design, and the omission of the court to tell the jury that there was no just cause of provocation, if erroneous, could work no prejudice to defendant.
The following instruction is also objected to, viz :
‘ ‘ In order to convict the defendant of murder in the first degree, you must believe and find from the evidence*105 that defendant not only shot deceased, Annie Tisch, intentionally, bnt that he shot her intending to kill her. In this connection, however, you are instructed that, in the absence of qualifying facts and circumstances, a person is presumed to have intended the natural, ordinary, and probable result of his acts. Wherefore, if you believe from the evidence that defendant intentionally shot Annie Tisch in a vital part with a deadly weapon, to-wit: a loaded pistol, from which death unsued, you will find that' he intended to kill, unless the facts and circumstances given in evidence show to the contrary.”
No such inconsistency as is alleged to exist between this and the other instructions given is perceived, and that it contains a correct declaration of law has been held in the case of State v. McGee, 85 Mo. 647.
The cause was fairly and impartially tried, and the evidence fully sustains the verdict of the jury, and we find nothing in the record calling for an interference with the judgment, and it is hereby affirmed.