— The defendant was indicted for the murder of his wife ; the indictment charging that he had killed her on the ninth day of August, 1888, by striking her with a large club. The result of the trial was a verdict of murder in the first degree, the trial court refusing to instruct on any other degree, but instructing also on insanity. The statement of defendfendant’s counsel, which accompanies this opinion, supplemented by some additions and corrections I have made, furnishes the evidence of this cause in substance, and all that is necessary for understanding all the legal points arising upon that evidence.
I. The sufficiency of the indictment has been questioned ; it alleges that the defendant gave the deceased, with the club aforesaid, one mortal wound on the “ head and body.” This repugnant allegation, it is claimed, renders the indictmen t fatally defective. This contention would doubtless have prevailed at common law, but such objections are of no avail under our practice and statutory provisions. State v. Edmundson, 64 Mo. 398; State v. Draper, 65 Mo. 335; R. S. 1879, sec. 1821.
II. The most important question, however, which this record presents is whether the court should have given an instruction upon murder in the second degree. It hás been frequently ruled by this court, that where the guilty agency of the accused in causing the death of the deceased is established, and nothing further, then the law will presume the crime was murder in the second degree ; but in the case at bar there are abundant circumstances showing something more than a mere intentional killing. The nature of the wound inflicted, the weapon employed to inflict them, the previous selection and preparation of that weapon, the defendant’s repeated confessions of the homicide with all attendant particulars, leave no room to doubt that the crime was nothing less than murder in the first degree. And his testimony does nothing to overthrow, controvert or countervail those confessions in the slightest degree. *473His general replies in regard to them are, “I don’t know,” “I don’t recollect what I said.” The insufficiency of such replies to contradict what he had previously confessed and testified, is too apparent to require more than a bare statement. The trial court was therefore entirely correct in declining to instruct on any other grade of murder than the facts aforesaid warranted. If the testimony of the defendant had been in direct contradiction of what the other witnesses testified ; if his testimony had made out a case proper for an instruction for murder in the second degree or even a lower degree of homicide, such instructions should have been given as being necessary to a full exposition of the law governing the case ; and as enabling the jury to properly perform their duty in making up their verdict; but no such testimony having been introduced, the action of the trial court must stand.
III. The claim is made that instruction number 4, as it is called, conflicts with a previous instruction properly defining murder in the first degree. It may be said that, as presented in the record, the instructions are not numbered, but if they were there is no such conflict as that supposed. The instruction condemned does not, when properly considered, conflict with a former instruction though not very happily worded, but its evident design and purpose was to inform the jury in effect and in addition to their previous information, of the presumption of the nature of the intention the law attaches to the use of a deadly weapon, and of an intent to kill being one of the ingredients of murder in the first degree ; but this statement by no means conflicts with a previous instruction or a former part of the same instruction, if but one instruction was given; both the instructions or both clauses of the same instruction can stand together.
IY. There is no fault in instructing the jury that if the deceased was unfaithful to her marriage vows, and *474defendant so believed and so believing killed ker, or if lie killed her because of jealousy he entertained towards her, then he is guilty of murder in the first degree; for this is simply the theory of the law, — as is attested by all the authorities treating of the subject. There is abundant evidence to support the theory of this instruction.
As the result of our views, it must be held that the judgment be affirmed, and accordingly we direct the sentence pronounced to be executed. R. S. 1879, sec. 1994.
All concur.