Lexington weekly intelligencer. (Lexington, Mo.) 1871-1887, 1886-03-06

'ue the jury alone could determine the
act of intention. But in matters of
his kind the court should not, by its
Instructions, invite a doubt when
othing is so unreasonable as to sup
'ose that any can exist"
AS the case was not one for an in
truction on the law concerning mur-
Ter in the second degree, and as de-
endants were tried for murder in the
irst degree, it may be thought defeu-
lants were not prejudiced by such in
truction. This idea cannot be sustain
I'd. Wecannot say whetherdetendants
should have been found guilty of
murder as charged or not. The Jury
was improperly led away from that
ssue by an instruction which induced
heir conviction of the crime Of
murder in the second degree. They
complain of that conviction and have
right to have the judgment reversed fit
has been obtained by undue means.
The undisputed evidence in the case
shows that the night before deceased
was shot and killed, she and defendant
had a quarrel in which threats were
made by the defendant against the de-
ceased, and that two or three days be-
tore the tragedy defendant, in speaking
of deceased, said he had $3.50 and was
going to leave the country, and if the
damned bitch didn't behave herself be
would shoot her. The undisputed evil
dence shows that defendant, who was
head cook in the City hotel, on the
morning deceased was killed, which
occurred about7 or {. o'clock, before
breakfast was finished told the assistant
cook that she would have to get dinner;
that he was going to leave; he bid
all the help about the house goodbye,
saying he was going to the post office,
but started off west in an opposite or
different direction; and a short time
after deceased was shot, defendant re-
turned to the hotel saying he had shot
Jennie, and ii she was not dead she
would die. The undisputed evidence
also shows that he went directly from
the hotel, after bidding the help good
bye, to the house where deceased was
staying, inquired if she was there, and
on being told that she was in bed
asleep in the little room adjoining the
large room, he went into the room
where she was, and closing the door
behind him, ordered her to get up, and
on her refusal he said:-"God damn
you have got it in for you and will do
you up;" that a pistol shot was then
heard and deceased ran out in her
night clothes through the large room,
on to the porch and out to the gate,
hallooing and screaming; that defen-
dant pursued her and fired two shots at
her as she ran; that when the last shot
was fired, deceased Immediately fell
to the ground, just outside the gate,
and died where she fell in few mo-
ments without speaking. The ply
slcian who examined her body testified
there were three gun-sho wounds on
her person, two of which were necessa-
rily fatal, one of them being in the
back. The above facts were establish.
ed by several witnesses.
Defendant, who was examined on
his own behalf, did not dispute the
fact that he pursued the deceased and
shot at her twice while she was fleeing
f.ouo h; ~, "a, hor ,,;rbf drooo u;o 90
count of what occurred after he enter
ed the room where deceased was il
t bed, is as follows:-sI went into thu
e room. Jennie was in bed. I askel
e her to get up and 60 to my room will
S me; she said she would not, and sat VI
t OH the edge of the bed with her feet OF
# the floor. She had eighty dollars O
d mine which had given her to keep fo
e me; we were engaged. l said 1 sup
y pose our engagement is all over with
n She said, eyes, I have been playin,
n you for your bottom dollar, and I hav'
II got it and have no further use for you.
Il She refused to give me my money, AMI
said she would burn it up first
d said yes, you threatened my life las
It night, did you mean il? She said yes
: meant it, and will do it now; she RAJ
Is her hand under the pillow, pulled out
! pistol and started toward me. I spran
e at her, wrenched the pistol from he
le hand and it went off Igot the pisto
,, from her; she stopped down as !
is reaching for something, and fired.
,r don't know whether fired again o
le not. When came out and saw Jenni
lying there I knew what had done
is gave the pistol toss, came mp tow
IN and gave myself up" On his cross-ex
d animation he said: 81 do not kno,
l. what she was STOPPING for when 1 she
l. her don't know why threw the piste
T. away; don't remember firing the thir
j. shot Can't tell why. Can't remembe
L. what was done up to the time of shool
,e ing the second shot" According to d.
ID fendant's own evidence he had dis
armed his victim, and shot her whe
he she was in STOPPING position an
III ROWcIl6DS W uaTIu ne OO0S n0
if state that there was anything With
r. her reach with which if she had eve
secured it, she could have hurt him. B,
E. side this the uncontradicted evidence
m that deceased fed from him that he pu
of sued her with deadly aim, shot he
n mortally in the back as she got to Il
he gale, twenty-five feet from him, as
of determined she should not escape ii
IN fate which he said two or three day
Mt before should be hers.
ch The case is analogous to the case O
as State vs.. Jones 79 No.. AL, at least 8
: far as the evidence of defendant give
,r in his own behalf is concerned, and
" was there held that the court properl
he refused an instruction for murder il
ID the second degree.
al In view of what is said in the case O
,r the State VS.. Stair 3S Mo-, 271, 'that
ID is the duty of the court to instruct tn
,r iury with reference to the Testimony i,