State v. Wingo
Supreme Court of Missouri
Appeal from Livingston Circuit Court. — Hon. E. J. Broadus, Judge. I. . The first instruction, given at the instance of the State, is erroneous, for the following reasons : 1. Because it ignores the question of malice. This ¿s an essential element in the crime of murder in the second degree, and while it may be inferred from other facts proved in the case, still it is an issue that must be passed upon by the jury.
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Appeal from Livingston Circuit Court. — Hon. E. J. Broadus, Judge. I. . The first instruction, given at the instance of the State, is erroneous, for the following reasons : 1. Because it ignores the question of malice. This ¿s an essential element in the crime of murder in the second degree, and while it may be inferred from other facts proved in the case, still it is an issue that must be passed upon by the jury. State v. Joeckel, 44 Mo. 234; State v. Philips et al., 24 Mo. 485. 2. Because the testimony as given by the State devel-. ops facts tending to excuse, justify or extenuate the…
1Opinion of the CourtHenry, J.
— That it devolves upon the State to establish by evidence the guilt of the accused beyond a reasonable doubt, will not be controverted. The defendant, by his plea of not guilty, puts in issue every material allegation in the indictment. He is not required to plead specially any matter of justification or excuse. The case is not divided into two parts, one of guilt, asserted by the State, the other of ■ *183imneoenee, asserted by tbe accused. He does not plead affirmatively that he is innocent, but negatively that he is not guilty; and on that issue, and that alone, the jury are to try the ease…
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