Hill v. State

<p>1. An indictment for murder charged that the accused shot and killed the named decedent “with a certain gun” which the accused then and there held. On the trial it appeared that the accused committed the homicide by shooting the decedent with a pistol. Held, that it was not cause for a new trial that the court told the jury that a pistol is a gun. State v. Barrington, 198 Mo. 23 (95 S. W.. 235).</p> <p>2. On the trial a witness testified to the following effect: “Jim Pope Brown [the decedent] was in the wagon when he was talking to Eletcher [the accused], and when he got to Fletcher’s house he jumped out of the wagon and hit Eletcher somewheres up here [indicating]' with a board and knocked him down, and when Fletcher got up he shot Jim Pope. . . Eletcher was not doing anything when Jim Pope hit him.” Held, that this testimony required the court, even without a request so to do, to instruct the jury as to the law of voluntary manslaughter, set forth in the Penal Code, § 65, dealing with a homicide which is the result of a sudden, violent impulse of passion supposed to be irresistible.</p> <p>3. Where to the judge’s order overruling a motion for a new trial, which complained, among other things, of a failure to charge the law relative to voluntary manslaughter in a case where the evidence involved such offense, the judge appended a note giving as his reason for such failure to charge, “that both counsel representing the defendant insisted to the court and jury that voluntary manslaughter was not involved,” such note is not to be construed as stating that counsel for the defendant had requested the judge not to charge the law of voluntary manslaughter, or that the defendant formally admitted that such offense was not involved in the ease, and such statements show no reason for not charging the law of voluntary manslaughter under the evidence in the case.</p>