74 Mo. 253 | Mo. | 1881
The defendant appeals to this court, having been convicted in the trial court of murder in the first degree. Annie Lewis is the name of the person he is charged with having murdered.
I.
The ruling was correct which denied defendant’s mo
So frequently has this court passed upon the question of propriety of refusing a continuance in criminal cases, that it is unnecessary to do more now than to refer to some of our former adjudications where similar applications were unsuccessful, and to say that granting a continuance
II.
There was no variance between the allegation as to the homicide and the evidence offered in support of the allegation. The indictment alleges the assaulting and mortal wounding of Annie Lewis, with a pistol, occurred on the 31st day of August, 1879, and that of “said mortal wound the said Annie Lewis did then and there instantly die.” The words “ then and there ” refer to the date already mentioned, and have the same effect as if the date were actually repeated. Wharf. Crim. Plead, and Prac., § 131, and cases cited. The evidence shows that death ensued twelve hours after the shooting and on the same day the shooting occurred, thus fully, supporting the charge in the indictment. The word “instantly ” may be rejected as surplusage. And under our statute even had there been a variance between allegation and proof “ in the name or description of any matter or thing whatsoever,” “ named or described,” in the indictment, such variance would be no ground for acquitting the defendant or for reversing the judgment, “unless the court before which the trial shall be had, shall find that such variance is material to the merits of the case, and prejudicial to the defense of the defendant.” R. S. 1879, § 1820; State v. Wammack, 70 Mo. 410.
Besides all that, time is not of the essence of the offense in a case of this sort, and where this is so the validity of the indictment cannot be questioned, nor the judgment thereon be stayed, arrested or in any manner affected
III.
It was too late after verdict to object for the first time to those who composed the trial jury. In order that a defendant may avail himself of any error or irregularity, any want of compliance with proper methods of procedure in the selection and empaneling of the jury, his objections and exceptions must be timely ones. State v. Marshall, 36 Mo. 400. Moreover, this court has repeatedly held statutes in respect to the empaneling of juries in criminal cases directory, and that it will refuse in any event to interfere unless some prejudice to the defendant from a lack of compliance with statutory provisions be inferable from the circumstances. State v. Breen, 59 Mo. 413; State v. Pitts, 58 Mo. 556.
IV.
"We come now to the instructions — and first, as to that given on the part of the State in reference to the word “ deliberately.” This in the instruction under consideration was stated to mean in a cool state of the blood, not in that heated state which the law denominates “ passion,” and the passion here meant is not that which comes of no cause; but that, and that only, which is produced by some lawful provocation. This instruction is almost identical with that given in the State v. Kotovsky, ante, p. 247, and, though not in accord with recent decisions of this court,
It is urged that the court erred in refusing an instruction to the jury as to insanity. The defendant testified in his own behalf as follows: “After repeated promises of Annie Lewis to marry me she refused to keep her promise of marriage with me, whereupon it made me wretched and worthless; my life became a mist to me; I was literally drawn up ; I did nothing principally but knocked around town. On the Saturday of the killing of Annie Lewis I had started to work at unloading steamboats. The pistol is my brother’s. I don’t remember much about it, that day —it’s like a dream. Something I think I can remember— my brother that day asked me to hold his clothes; his pistol was in his pocket and I took it out. I never owned a pistol After Annie’s last refusal I drank whenever I had money. I remember nothing that happened during that night that Annie was shot. I don’t remember having seen the persons who have testified. The first remembrance is of a man who came into the station Sunday morning and asked me if I wanted something to eat. He told me what I was in there for, that I shot á girl.” This was all the evidence introduced having the remotest bearing on the question of insanity. We have no hesitation in saying that this evidence furnishes no basis whatever for an instruction on that subject. That the defendant went to the locality pointed out by the testimony with the design of committing the crime of which he now stands convicted, no one can doubt who reads the record. His determina