The State, Respondent, vs. Dunn, Appellant, 18 Mo. 419

Scott, Judge, delivered the opinion of the court. 1. For the instructions given by the court, at the instance of the circuit attorney, this judgment must be reversed. The first instruction given cannot be sustained. A question of law should not be referred to a jury. What is a sufficient provocation to make what otherwise would be murder a less offence, is a question of law. The facts are found by the jury, and the court declares the law arising upon them, as they may be found. There can be no difficulty in such cases.

If there is evidence tending to establish the facts constituting a provocation sufficient to extenuate murder, the jury should be instructed hypothetically. If the opinion of the court is so, the jury should be directed, that if they believe the facts (recapitulating them) are established which constitute the provocation, they should find according to the degree of extenuation such facts make in law.

To tell the jury that if the killing was done without sufficient provocation, it is murder, without informing them whether the facts offered in evidence, if established to their satisfaction, would constitute a provocation, is leaving them to determine what is a sufficient provocation to extenuate murder. They may think one thing or another, or any act, however venial, would be a sufficient provocation. So the definition of murder would depend, in each case, upon the passions or prejudices of jurors. 2.

The common law implied malice in every unlawful killing, and the burden of proof of extenuating circumstances, unless they arose out of tbe evidence against the defendant, lay on him. Our act, defining murder in the first degree, is a transcript of the act of 1794, of the state of Pennsylvania. Under that statute, it has been held that, unless the circumstances of malice are proved, the law will presume the unlawful tilling murder of the second degree. Under the act, the unlawful killing is presumed to be murder, but not murder in the first degree.

Whenever it appears from the whole evidence, that the crime was, at the moment, deliberately or intentionally executed, the killing is murder in the first degree ; as if one, without uttering a word, should strike another on the head with an axe, this would be deemed premeditated violence within our act; it will constitute the offence, if the circumstances of wilfulness and deliberation were proven, although they arose and were generated at the period of the transaction.

If the party killing had time to think, and did intend to kill, for a minute as well as an hour or a day, it is a deliberate, wilful and premeditated killing, constituting murder in the first degree. So that, under the statute, there is no foundation for the notion, that the crime must have been preconceived some time before its perpetration. 8. It is objected, that the fifth instruction given at the instance of the State, is erroneous, as it falls within the prohibition contained in the 28 th

section of the 6th

article of the act concerning Practice and Proceedings in Criminal Cases. That

section enacts, that on the trial of any issue on any indictment, the court shall not sum up or comment upon the evidence, or charge the jury as to matter of fact, unless requested so to do by the prosecuting attorney and the defendant or his counsel. So much of that instruction as contains the direction to the jury, that the facts recapitulated went a great way to fix the grade of homicide at murder in the first degree, is erroneous.

The facts referred to did not take place until after the death of the deceased, and could have no influence on the question, whether there was a provocation or other circumstance which mitigated the offence. They raised no question of law, and could only affect tbe question of the guilt of the accused. The court, then, should not have told the jury that they went a great way to show that the defendant was guilty of the crime of murder. "Whether the crime was murder or manslaughter, the accused might hare equally feared the punishment of the law.

The acts referred to certainly had no tendency to show the motive by which the accused was actuated in committing the offence. They could only have been dictated by a fear of punishment. If the instruction had been confined to the fact of the use of weapons likely to kill, it might have been given as evidence of malice and premeditation. 4. There is no warrant for the course of selecting each fact constituting the offence with which one is accused, and asking the court for an instruction to the effect, that if the jury have a reasonable doubt of that fact, they must acquit.

All that is required of the court is, that, in suitable cases for such an instruction, it should tell the jury that, if, upon the whole case, they have a reasonable doubt of the guilt of the accused, he should be acquitted. Judge Ryland concurring, the judgment is reversed, and the cause remanded. Judge Gamble not sitting.