State v. Palmer

88 Mo. 568 | Mo. | 1886

Siiebwood, J.

Tried for murder in the first degree, defendant was convicted of murder in the second degree," and his punishment fixed at fifteen years in the penitentiary.

I. There was no error in permitting the state to introduce evidence in the first instance of the general moral character of the defendant being bad. He had offered himself as a witness, therefore, was subject to the same rules and tests, and could be impeached in the same manner as any other witness. State v. Clinton, 67 Mo. 380. Had the defendant not been a witness, then the state could not have attacked the general moral character of the defendant, unless he had first introduced evidence in his own behalf in that regard. State v. Creson, 38 Mo. 372. The only exception to the position here taken, as to a defendant being subject to same rules and tests, is that created by statute and relates to certain restrictions as to the extent to which the cross-examination of a defendant witness may go. And it was sufficient for the purpose of impeachment that the inquiry on part of the prosecution should proceed no' further than to elicit from the witness that the general moral character of the defendant was bad. State v. Grant, 79 Mo. 113. If the defendant’s counsel desired to descend into particulars, this opportunity was afforded them by cross-examination, and there exists on this score no ground of complaint.

II. There was error in the tenth instruction given at the instance of the state, in that this instruction omitted any word or expression requiring that the testimony of a witness in order to be disregarded should have been knowingly or wilfully false. Bank v. Murdock, 62 Mo. 70; State v. Elkins, 63 Mo. 159; White v. Maxey, 64 Mo. 552. And the authorities just cited go to the extent of holding that there must be a sufficient basis in the testimony for any instruction on the point in hand, even though the instruction be correctly worded.

III. The eleventh instruction on behalf of the state was erroneous for that it introduces an .unwarranted element. If the defendant acted in a moment of apparently impending peril, it was not for him to nicely gauge the proper quantum of force necessary to repel the assault of the deceased. Nichols v. Winfrey, 79 Mo. 544; Morgan v. Durfee, 69 Mo. 469.

IY. There was evidence which justified the giving of instructions for the different degrees of murder. The putting by defendant of a leathal weapon, the weight, in his pocket, prior to the fatal occurrence, and its subsequent use, and his alleged remark to Scott, were indicative of malice. If such preparation was made with a view to legitimate self-defence, this would put a different face on the transaction, and of that the jury under proper instructions were to judge. But an instruction was also warranted for a lower grade of homicide than either of the degrees of murder. The defendant had testified that when he struck he did not intend to kill the deceased. If this statement was true he was not guilty of murder in any degree. And he had a right to testify as to his intent, and his testimony for the purpose of instructing the jury occupied the same footing as that of any other witness. State v. Banks, 73 Mo. 592; Nichols v. Winfrey, supra. And it was the duty of the trial court to give all necessary instructions, whether asked or not, as has been frequently decided by this court.

For the errors aforesaid, judgment reversed and cause ' remanded.

All concur.