State v. Gee

85 Mo. 647

• Court: Supreme Court of Missouri
• Decided: April 15, 1885
• Status: Published

Opinion

Sherwood, J.

The defendant was indicted for murder in the first degree. Being tried, he was found guilty of murder in the second degree, and his punishment assessed at imprisonment in the penitentiary for the term of fifteen years. The circumstances detailed in evidence afforded sufficient basis for finding the defendant guilty of either degree of murder, or of manslaughter in the fourth degree, or of acquitting him on the ground of self-defence, and the instructions which the court gave placed the matter before the jury in the fairest possible light for the defendant, and he is without any just ground of complaint on that score.

Instruction number nine put the case to the jury on the theory of murder in the second degree, and instruction number ten was based on the theory of manslaughter in the fourth degree, detailing the facts, which, if proven by the evidence, would warrant the latter finding. It is impossible that the jury could have been misled as to what were the constituent elements of that degree of homicide. And it was proper that the court should base an instruction on the testimony of Moss, who did not see Minnick strike defendant a blow, or push him, before the fatal shot was fired, but did hear Minnick use abusive words to defendant before the latter shot him. The testimony of Moss, although in some sense of a negative character, he having, however, full opportunity of seeing the blow struck, if one was struck, was entitled to go to the jury for what it was worth, in connection with that of other witnesses, who spoke of abusive words, and was sufficient to base instruction number nine upon, notwithstanding several other witnesses testified that Minnick, at, or about, the time of using the words, also struck the defendant a blow, or blows. Although, as a general rule, positive testimony will outweigh that which is negative in its character, nevertheless, to the jury belongs the duty of determining for themselves what weight, considering all the circumstances, they would attach to the testimony of the various witnesses on the point in question. Reeves v. Poindexter, 8 Jones (N. C.) 308; Henderson v. Crouse, 7 Ib. 623; State v. Phair, 48 Vt. 366; Wharton on Crim. Evid., sec. 382; 1 Stark, on Evid., sec. 517.

It was proper, also, for the court to base instruction number ten alone on the hypothesis of blowshaving been given, and heat of passion engendered therefrom.

Finding no error in the record we affirm the judgment.

All concur.