— On the 6th day of January, 1902, there was lodged in the office of the clerk of the circuit court of Sullivan county, by the prosecuting attorney of said county, an information charging the defendant, Newton J. Privitt, with murder in the first degree, in shooting and killing with a double-barrel shotgun, at said county, on the 26th day of November, 1901, one John W. Wolf. Thereafter in April, 1902, defendant Was put upon trial in said court, and convicted of murder in the first degree. He appeals.
There is no dispute as to the facts which lead up to the homicide, which briefly stated are as follows:
“Newton Jasper Privitt, the defendant, is a married man and the father of several children. Sometime during the latter part of June, 1901, the defendant received an anonymous communication suggesting that Ms wife was unfaithful to her marital vows, and that -their nearest neighbor, one Page Weston, was her paramour. On receipt of tMs communication, the defendant confronted his wife with its contents and she confessed that she had been guilty of criminal intimacy •with John W. Wolf, the deceased; but denied that she 'was guilty of having committed this offense with Weston. She admitted that her liaison with Wolff had ' existed for about ten years.
“The defendant began to consider and to discuss -with his friends-what course he should pursue as to Wolf, and whether he and his wife should thereafter •live apart. He sent word by his quondam brother-in-law to Wolf that he must leave the country at once. Wolf acquiesced to this and immediately began to prepare for his departure. It seems that Wolf was not able to so arrange his affairs as to be able to leave on the day fixed by defendant for Ms departure and an extension of the time was granted him. Wolf, after having-
“Soon after Wolf’s return home, the defendant again armed himself and began renewing his threats against the life of Wolf; but, being informed that Wolf' was also armed and prepared to meet any assault that1 defendant might make, upon him, he then requested his informant to see Wolf and to advise him if he, Wolf, would never come to defendant’s home again, would never speak to defendant’s wife or Ms minor children, and lay aside his arms, he, the defendant, would also lay down his arms, and their trouble would be settled. To this proposition Wolf assented, and the defendant, on being advised of Wolf’s consent, said, ‘All right, that settles it.’ Thereupon another armistice was declared. This was during the month of July.-
“The record does not disclose that either party failed to carry out this-agreement or that there was a renewal of hostilities in any manner, until the 26th day of November, 1901. On that-day the. deceased, accompanied by Ms wife and two children, was on his way to the town of Osgood. Their way ran past the farm which was owned by the defendant and on which he was then building a new house. Immediately after
‘£ The defendant interposed a plea of insanity. The evidence on his part tended to show that after he had been advised of his wife’s shame, he was melancholy in mind and depressed in spirit; that he was not given to levity and jocosity that had been his wont.”
The court at the instance- of the State, over the objection and exception of defendant, instructed the jury as follows:
“2. It is the duty of the court to- instruct you on all questions of law arising in this case, and it is your duty to receive such instructions as the law of the case-, and find the defendant guilty or not guilty, according to the law as declared by the court and the evidence as-you have received it under the instructions of the court.
“3. If the jury believe- and find from the evidence in this cause that the defendant, Newton Jasper Privitt, in the county of Sullivan, and State- of Missouri, on or about the 26th day of November, 1901, did feloniously, willfully, deliberately, premeditatedly and of his malice aforethought make an assault upon John Wolf with a certain loaded gun, and then and there with said gun, feloniously, willfully, deliberately, .premeditatedly and of his malice aforethought did kill said John Wolf by shooting him upon the head and body, and thereby inflicting upon him a mortal wound of which said- wound he immediately died at said county of Sullivan, during said month of November, 1901, and was thus killed by the shooting aforesaid, as charged in the information, then you will find the- defendant guilty of murder in the first degree, and so state in your verdict.
“He who willfully, that is, intentionally, uses upon another at some vital part a deadly weapon, such as a loaded gun, must, in the absence of qualifying facts, be presumed to know that the effect is likely to be death, and knowing this, must be presumed to- intend death, which is the probable consequence of such an act. He
“3a. As used in the information and in these instructions ‘felonious’ means wrongfully and wickedly, and also refers to the punishment imposed by law. • ‘Willfully’ means intentionally and not done by accident. ‘Premeditatedly’ means thought of beforehand for any length of time, however short. ‘Deliberately’ means done in the cool state of the blood, not in sudden passion, engendered by lawful or some just cause of provocation. And the court instructs the jury that in this case there is no evidence tending to show the existence of any such passion or provocation. ‘Malice’ means that condition of the mind which prompts one to do a wrongful act intentionally without legal justification or excuse-. It does not mean mere spite, hatred or ill will, but signifies that state- of disposition which shows a heart regardless of social duty and fatally bent on mischief; and ‘malice- aforethought’ means that the act was done with malice and premeditation. ‘ Malice, ’ as used here, may be presumed from the intentional
“4. To the charge made against the defendant of the taking of the life of John Wolf the plea of insanity is interposed, in other words, under the plea of not guilty the defendant may, as he does, rely upon insanity as a defense to the charge made against him. And it is for you to determine, from all the evidence in this case, ■ the validity of such or any defense interposed. Insanity, if satisfactorily shown by the evidence, is a valid defense, but before the defendant can be acquitted of the shooting and taking the life of John Wolf in the manner he did, by reason of irisanity, the jury must believe from all the evidence that at the time of the taking of the life of the said John Wolf he was not in possession of his faculties, and was incapable of appreciating the moral qualities of his act and of distinguishing between right and wrong in respect to said act; in other words, in order to hold the defendant criminally responsible for taking the life of John Wolf, it is only necessary that the jury be satisfied from all the evidence that he had sufficient mental capacity to distinguish between right and wrong as to the particular act with which he so stands charged. And if the defendant at the time of the said killing had sufficient mental capacity to distinguish between right and wrong as to said act, and knew that his act was criminal and wrong, and would deserve punishment, then in law he had a criminal intent and was not so insane as to be exempt from the responsibilities of his act. And in this connection the court further says to the jury that excitement or frenzy arising from the passion of anger, hatred or revenge, no matter how furious, if not the result of a diseased mind, is not legal insanity, and the jury should not confound excitement, anger or wrath or acts done or committed in either or both or in revenge with actual insanity, insanity recognized by law. Because' it is only legal insanity, a disease of the brain,
“5. The jury will observe from all the instructions given to them either upon the part of the State- or the defendant, that under the law the defendant had no right to kill John Wolf because of his knowledge or suspicion of deceased and defendant’s wife having previously had illicit intercourse. The law is that where a man finds his wife in the act of adultery and at the' moment kills the adulterer, the law, while not justifying even under these circumstances, the taking of life, will lessen the offense to manslaughter. And the law is further, that if a husband, upon hearing of such adultery, immediately before he has had time to reflect and before having formed the conscious purpose or design to take life, pursues and kills such adulterer, such killing will be murder in the second degree, but the jury will bear in mind that under the law, to reduce the killing under the circumstances stated to manslaughter, the person killed and the wife of the slayer,, must by such husband, be found in the act of' adultery, and such killing then and there done.. And to reduce the taking of life to murder in the second degree by reason of hearing of adultery between the person slain and the wife of the slayer, such killing must be done immediately upon the hearing of such adultery, before time has been had to reflect and the conscious purpose formed to take such life. And, in no event can a person, where he has been informed, suspected and known for days, weeks or even months, of the adultery of his wife with another prior to taking the Iff* >f such other, be in anywise justified, excused or his crime mitigated in the taking of the life of such other under the circumstances and after
“6. The jury are further instructed that excitement, passions and angered feelings or revenge produced by motives of anger, hatred or revenge is not insanity, and that the law holds the wrongdoer of an act under such conditions responsible for his acts and the jury have no right to excuse or in anywise justify or mitigate defendant’s act in the taking of John W. Wolf’s life, except they can so do under and according to the law.
“7. The jury will observe from all the instructions given them, those upon the part of the State as well as defendant, that under the law the defendant had no right to kill John W. Wolf because of his knowledge, or suspicion of deceased and defendant’s wife having previously had illicit intercourse. And in this case if the defendant after having suspected or known for days, weeks or even months of the intimacy of his wife and John W. Wolf, by reason thereof, and after having formed a conscious design and purpose to kill said Wolf, did kill said Wolf, the so killing of said Wolf was and is under the law murder in the first degree, and the jury should so find.
“8. In determining as to the guilt or innocence of the defendant you should take into account the testi-. mony in relation to his character as a moral man, and
“9. The reasonable doubt mentioned and referred to in these instructions means a substantial doubt arising out of the evidence, and not a mere possibility' of the defendant’s innocence.”
On the part of defendant the court instructed the jury ás follows:
‘ ‘ 1. The information in this case is a mere formal charge against the defendant, and of itself is no evidence whatever of his guilt, and m> juror should permit himself to be in any degree or to any extent influenced by it.
“2. If, after fully and deliberately weighing and •considering all the evidence before them in this case, the jury entertain any reasonable doubt of the defendant’s guilt, they must give him the benefit’of such •doubt and acquit him. A juror is understood to entertain a reasonable doubt when he has not an abiding conviction of mind founded on the evidence to a moral certainty that the defendant is guilty as charged.
-“3. The court instructs the jury that insanity is interposed by counsel for defendant as an excuse for the charge set forth in the information. This defense when established is one the law recognizes and entitles the defendant to be acquitted altogether. Insanity is a physical disease located in the brain, and is either partial or general; and which disease so perverts and deranges one or more of the mental and moral faculties so far as to render the person suffering from the affliction incapable of distinguishing right from wrong in reference to the particular act charged against bim,
•“4. If the jury believe and find from the evidence that the mind of the defendant, Newton Jasper Privitt, was unbalanced, diseased and disordered at the time he shot and killed the deceased, John W. Wolf, and in such condition in regard to that particular act that he did not have sufficient intelligence, reason and will to enable him to distinguish between right and wrong in respect to said act, and to know and understand that it. would be wrong, and that he would deserve punishment, by committing it, and at the time sufficient mental power to control the impulse of his own disordered mind, then the defendant is not guilty as'charged in the information, because of his disordered mind, and upon that ground the jury should acquit him.
“5. The court instructs the jury that to establish the insanity of the defendant with respect to> the act charged against him in the information, positive and direct proof of it is not required. To entitle him to an acquittal by reason of his insanity at the time of the killing of said John W. Wolf, by defendant, circumstantial evidence which reasonably satisfies the mind of its existence is sufficient. As the law presumes the defendant innocent, the burden of proving him guilty rests with the State, and before you should convict him his guilt must be established beyond all reasonable doubt.
“7. The testimony given by the physician and expert who testified in this case is to be taken and considered by the jury like the evidence of the other witnesses who testified in the cause; and the opinions on questions of insanity, 'which have been given by the' medical expert, are subject to the same rule of credit •or discredit as the testimony of the other witnesses, and are not conclusive on the jury. These opinions neither establish nor tend to establish the truth of the facts upon which they are based; whether the matters testified to by the witness in the cause as facts, are true or false, is to be determined by the jury alone, and you must also determine whether the facts and matters stated and submitted to .experts in the hypothetical questions are true in fact, and have been proven in this case.
‘18. Under the law of this State the defendant is presumed to be innocent of the crime charged against him, and so strong is this presumption that it clings to him, surrounds, shields and protects him, through the entire trial of this case, and until such presumption is overcome by evidence which proves his guilt beyond a reasonable doubt. Such evidence, in order to warrant -a conviction, must be clear, satisfactory and abiding,i fully satisfying the mind and conscience of each and every juror. It is not sufficient, in a criminal case, to justify a verdict of guilty, that there may be strong •suspicion or even strong probability of guilt, but the law requires proof by legal and credible evidence of such a nature that, when it is all considered, it produces a clear, undoubting and entirely satisfactory conviction of the defendant’s guilt. The burden of - proof
The defendant also prayed the court to instruct the jury as to the law of murder in the second degree, but the court failed and refused to do so, to which failure and refusal of the court to so instruct the jury, the defendant then and there excepted at the time.
The defendant also objected and excepted to the failure of the court to instruct the jury upon 'all questions of law arising in the case and necessary for their guidance in the determination of their verdict, and saved his exceptions.
The information, leaving off the formal parts,- is as follows: “That one Jasper Privitt on the 26th day of November, 1900, at the county of Sullivan, in the State of Missouri, then and there being, in and upon one John W. Wolf, then and there feloniously, willfully, deliberately, . premeditatedly, on purpose, and of his malice aforethought, did make an assault, and with a dangerous and deadly weapon, to-wit, a double-barrel shotgun, then and there loaded with gunpowder and leaden, balls, which he, the said Jasper Privitt, in his hands then and there had and held at and against him, the said John W. Wolf, then and there feloniously, willfully, deliberately, premeditatedly, on purpose and of his malice aforethought, did shoot off and discharge, and with the double-barrel shotgun aforesaid, then and there feloniously, willfully, deliberately, premeditatedly, on purpose and of his malice aforethought, did shoot and strike him, the said John W. Wolf, on the body and head of him, the said John W. Wolf, then and there with the dangerous and deadly weapon, to-wit, the double-barrel shotgun aforesaid, and the gunpowder and leaden balls aforesaid, in and upon the body and head of him, the said John W. Wolf, giving to him, -the said John
“And the said James R. Page, the prosecuting attorney aforesaid, under his oath of office aforesaid, does say that the said Jasper Privitt, him the said John W. Wolf, in the manner and by the means aforesaid, feloniously, willfully, deliberately, premeditatedly, on purpose and of his malice aforethought, did hill and murder, against the peace and dignity of the State.”
It is said for defendant that the information is invalid in that it does not state when or where or with what instrument the mortal wound was given or that the wounding was felonious. But this seems to us to be a misinterpretation of the information.
It does not omit the words “then and there,” after the words, “giving to him, the said John W. Wolf, a mortal wound, ’ ’ as contended by defendant, but expressly avers, “giving to him, the said John W. Wolf, a mortal wound, of which mortal wound the said John W. Wolf did then and there, in said county of Sullivan, instantly die. ’ ’ It clearly appears from the information that the assault was committed with a. shotgun loaded with gunpowder and leaden balls, and that the defendant then and there with said, shotgun, feloniously, willfully, deliberately, premeditatedly, on purpose and of his malice aforethought, did shoot and strike the deceased, giving to him a mortal wound, of which wound said deceased, in Sullivan county did instantly die. This seems to us to be a sufficient averment of the time and place of giving the wound and the cause of the death.
The information is- in all material respects like the indictment in the case of the State v. Jones, 134 Mo. 259, which was held to be good by this court.
So in United States v. Ball, 163 U. S. 663, it was held that an indictment for murder which alleges that Millard Fillmore Ball, John C. Ball and Robert E. Boutwell, at a certain time and place, by shooting with
While the better rule in preparing indictments and informations is to follow approved precedents when it can be done, they are not necessarily defective because they fail to do so, but if they contain all necessary averments though couched in different language from approved forms and precedents, they will be held good. The information in this case we think sufficient.
The next question presented by this appeal is with respect to the admission of the expert evidence of Dr. C. R. Woodson, which defendant claims was erroneously admitted; not upon the ground that he was not qualified, but upon the ground that the hypothetical question propounded to him leaves out nearly all the essential ingredients in the case. To another question of a similar character defendant objected, upon the ground that the question is incompetent, because it does not state the law in that regard, it omits an essential ingredient to make it the law. We are not advised what essential ingredients in the case were omitted from the hypothetical questions propounded to the witness, and are, therefore, not able to appreciate the full force of the objections. It is, however, said that the first of said questions does not assume that the matters stated in the question were true, and while it called for the opinion of the witness on the whole case with respect to the sanity or insanity of the defendant, it was not predicated, as it should have been, on all the evidence -in the ease bearing on the question of defendant’s insanity. In putting hypothetical questions to the expert witness, counsel for the State had
With respect to the other question, there was very little conflict in the evidence in regard to the facts and circumstances which led up to the homicide, and defendant’s mental condition at that time, and recently thereafter. The expert witness was present during most of the trial, and heard all the evidence in regard to the mental condition of defendant, except the testimony of one witness which was stated to- him by counsel for the State, and under such circumstances there was no reversible error in allowing him to express his-opinion as to defendant’s mental condition at the time of the homicide predicated on the evidence as he heard it, and as stated to him. [State v. Klinger, 46 Mo. 224.]
In McNaghten’s case, 10 Clark & Finnelly 200, it was held that where an accused person is supposed to be insane, a medical man, who has been present in court and heard the evidence, may be asked as a matter of science, whether the facts stated by the witnesses, supposing them to be true, show a state of mind incapable of distinguishing between’ right and wrong.
In the case of Gritchell v. Hill, 21 Minn. 464, it was said that “the trial court may, in its discretion, as a matter of convenience, permit the hypothesis to be put to the witness, by referring him to the testimony, if he has heard it, instead of requiring the counsel to recapitulate it.”
The rule seems to be that “when, in a proper ease for expert testimony, the facts are admitted, -or proved by evidence which is not conflicting, the opinion of an expert upon such facts is admissible as a scientific de
Defendant, however, contends that as only the evidence of one witness was stated to the expert, Dr. Wood-son, with respect to the evidence of all the other witnesses who testified as to the mental condition of the defendant, or such of them as Dr. Woodson may have heard testify, he as the expert in the case, was thus called upon to give ah opinion upon his memory of what the evidence was, and upon his conclusions 'as to what the evidence established as facts, thus being called upon to determine the facts for himself, thereby becoming the trier of the facts in place of the jury. There is much force in this contention. It has, however, been held that even where more than one witness has testified, if there is no conflict in the evidence* as in the case at bar, a court may, in its discretion, allow 'counsel h> ask a hypothetical question upon the facts testified to by the witness as he remembers them without any recapitulation of the evidence. [Rogers on Expert Testimony (2 Ed.), 71.]
' But the better practice in all cases where the facts are controverted or are not entirely clear, is to put to the expert hypothetical questions, based upon the facts claimed to have been proven by the evidence in order that the jury may know the facts and circumstances upon which the expert’s opinion may be based, and, to determine for themselves, as is their province, whether proven or not; otherwise, the expert must depend upon his memory as1 to the facts and predicate his opinion thereon, thus becoming himself the trier of the facts, instead of the jury.
In Bennett v. The State, 57 Wis. 69, it was said: “To permit an expert in such case to give an opinion upon his memory of what the evidence was, and upon his conclusions as to what the evidence established as facts, would seem to be trenching upon the province of the jury and trying the case solely upon the opinions of the experts, founded upon their recollection and their
The same rule is announced in 2 Greenleaf on Evidence (7 Ed.), sec. 373, note 1; Guiterman v. Steamship Co., 83 N. Y. 358; Reynolds v. Robinson, 64 N. Y. 589; Dexter v. Hall, 15 Wall. 9; McMechen v. McMechen, 17 W. Ya. 683, 694; State v. Felter, 25 Iowa 67; Reed v. State, 62 Miss. 405; State v. Bowman, 78 N. C. 509; Rogers on Expert Testimony, p. 64, sec. 27, note 1.
Over the objection of defendant the State was permitted to read in evidence a deed of trust executed by defendant and wife on the 30th day of November, 1901, to secure the payment of a note for that sum executed by him on that day to John W. Clapp, one of defendant’s attorneys, and this is claimed by defendant to be reversible error. The homicide was committed on the 26th day of November, 1901, and we are inclined to the opinion that the deed of trust having been executed so recently thereafter,.it was admissible as tending to show that he was not insane at the time of the homicidal act. It is true that it could have had but little weight with the jury even upon that question, but that was for their consideration.
It is said that the first instruction given on the part of the State is erroneous in that it eliminates from the consideration of the jury the question of whether under the evidence the defendant could be guilty of a less grade of homicide than murder in the first degree. We
In that case the defendant shot and killed the deceased as soon as he could get to- him after learning that he had wronged his daughter, and the deceased said to him that he would do it again and started towards him as if to assault him. In the case at bar, the defendant waited for weeks after he had learned of the intimacy of deceased with his wife, after they had entered into an armistice and deceased had been assured by defendant that he need not fear harm from him, that, too, without a word of any kind from deceased. There was, therefore, no error in giving this instruction.
The fifth instruction given on the part of the State is criticised upon the ground that it embraces abstract propositions of law, tells the jury under what circumstances a man would be guilty of murder in the second degree or manslaughter for killing another guilty of adultery with his wife, when there were no such issues in the case.
That this instruction presented mere abstract propositions of law to the jury and had no place in the case is indisputable,' but it does not necessarily follow that it was prejudicial error. The court had already instructed that under the evidence defendant was either guilty of murder in the first degree or not guilty of any offense, which was manifestly correct under the evidence. It could not, therefore, in any possible way have
It was held by this court in State v. Dunn, 80 Mo. 681, that a defendant can not complain of an instruction as to a grade of offense of which he was not convicted, even though the instruction was erroneous, and we- are unable to see any material difference between such an instruction and the one under consideration, which correctly told the jury what the law is under circumstances therein set forth, though not authorized, for the want of evidence upon which to base it. The judgment should not be reversed upon this ground.
There was no error in refusing to permit the witnesses, Hammond, Page, May and Knowles to testify that the deceased had gone armed in the expectation of meeting the defendant, and that the deceased had said that he might use weapons which he carried, on the person of the defendant. Threats of this character are only admissible when the plea of self-defense is interposed, and there is no pretense that the shooting in this case was done in self-defense. [State v. Reed, 137 Mo. 137; State v. Clum, 90 Mo. 482; State v. Brown, 63 Mo. 439.]
■ The crime was a most atrocious one, rarely equaled in its brutality among civilized people. After defendant learned that his wife and deceased had been criminally intimate for years, he notified him to leave the country, which he did as soon as possible, and went to Oklahoma with the view of moving there with his family and making it their future home. But after he had been gone but a few days defendant learned from his
Finding no reversible error in the record, we can but affirm the judgment, and direct the sentence which the law imposes to be executed.