State v. Talmage
Supreme Court of Missouri
Appeal from Chariton Circuit Court. — Hon. Gr. D. Burgess, Judge. (1) There is no foundation for an instruction upon the theory of murder in the second degree. First.
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Appeal from Chariton Circuit Court. — Hon. Gr. D. Burgess, Judge. (1) There is no foundation for an instruction upon the theory of murder in the second degree. First. Conceding the defendant was the aggressor, a concession, in the face of the uncontradicted evidence, yet, if he brought on the affray with no felonious intent, but in the course of the struggle found it necessary to kill deceased in order to save himself from serious personal injury, the offense is manslaughter not murder. State v. Partlow, 90 Mo. 608 ; State v. Parker, 96 Mo. 382; State v. Herr ell, 97 Mo. 105; State v. Wens…
1Opinion of the CourtThomas, J.
The defendant was sentenced by the circuit court of Chariton county, in October, 1889,'to imprisonment in the. penitentiary for ten years for murder of the second degree, and the case is here on his appeal.
I. The defendant was indicted for murder of the first degree, but the state, by permission of the court, elected to prosecute and did prosecute him, for murder of the second degree alone. The defendant interposed an objection to this course, which being overruled he excepted and now assigns it for error. This contention is not maintainable. The state .had a clear right to take this course,…
2Cases cited18 opinions
- Commonwealth v. DeanMassachusetts Supreme Judicial Court · 1872
- State v. PalmerSupreme Court of Missouri · 1886
- State v. TurlingtonSupreme Court of Missouri · 1890
- State v. LoweSupreme Court of Missouri · 1887
- State v. WagnerSupreme Court of Missouri · 1883
13 more not listed; retrieve them via the Exa API.
3Cited by26 opinions
- State v. TaylorSupreme Court of Missouri · 1972
- State v. AbramSupreme Court of Missouri · 1976
- State v. VanMissouri Court of Appeals · 1976
- State v. SharpSupreme Court of Missouri · 1911
- State v. GoodmanSupreme Court of Missouri · 1973
21 more not listed; retrieve them via the Exa API.