207 Mo. 607 | Mo. | 1907
— At the October term, 1905, of the circuit court of Maries county, the prosecuting attorney of said county filed the following information in said court:
*610 ■‘■‘State of Missouri, Plaintiff, v. George W. Ballanee, defendant.
“ Leslie B. Hutchinson, prosecuting attorney within and for the county of Maries and State of Missouri, upon his own knowledge, information and belief and under his oath of office as such prosecuting attorney now here informs the court, that George W. Ballanee, at the county of Maries and State of Missouri, on the 22nd day of September A. D. 1905, in and upon one Jasper Copeland then and there being feloniously, wilfully, premeditatedly, deliberately on purpose and of his malice aforethought did make an assault, and with a dangerous and deadly weapon, to-wit, a revolving pistol loaded then and there with gunpowder and leaden balls which he, the said George W. Ballanee, in his hands then and there had and held at and against him, the said Jasper Copeland, then and there feloniously, wilfully, premeditatedly, deliberately, on purpose and of his malice aforethought did shoot off and discharge and with the revolving pistol aforesaid, and the leaden balls aforesaid, then and there feloniously, wilfully, premeditatedly, deliberately, on purpose and of his malice' aforethought, did shoot, strike and penetrate and wound him, the said Jasper Copeland, in and about a vita] part of the body of him, the said Jasper Copeland, giving to him, the said Jasper Copeland, at the said county of Maries and State "of Missouri, on the 22nd day of September A. D. 1905, with the dangerous and deadly Aveapon, to-wit, the revolving pistol aforesaid, and the gunpowder and the leaden balls aforesaid in and upon the left breast of him, the said Jasper Copeland, one mortal wound of the width of about one-half inch and the depth of about eight inches, of which said mortal wound, he, the said Jasper Copeland, at the county of Maries and State of Missouri, on the 22nd day of September A. D. 1905, then and there of the mortal wound aforesaid, instantly died; and so Leslie B.*611 Hutchinson, prosecuting attorney aforesaid, upon his oath as such prosecuting attorney, and his own knowledge, information and belief aforesaid, does say, that he, the said George W. Ballance him, the said Jasper Copeland, in the manner and by the means aforesaid, feloniously, wilfully, premeditatedly, deliberately, on purpose and of his malice aforethought at the said county of Maries and State of Missouri, on the 22nd day of September A. I). 1905, did kill and murder, against the peace and dignity of the- State.'
“Leslie B. Hutchinson,
“Prosecuting Attorney.
“Leslie B. Hutchinson, being duly sworn, upon his oath says that the matters and facts stated in the above and foregoing information are true according to his best knowledge, information and belief.
“(Seal.) Leslie B. Hutchinson,
“Subscribed and sworn to before me this 2nd day of October, A. D. 1905.
“L. N. Hawkins, Circuit Clerk.”
The defendant was arrested and was duly arraigned on the same day and the ease was continued until the April term, 1906. At the April term, 1906, to-wit, August 9, 1906, the defendant was put upon his trial and convicted of murder in the second degree and his punishment assessed at fourteen years in the state penitentiary. And after unsuccessful motions for new trial and in arrest of judgment, the defendant was duly sentenced in accordance with the verdict of the jury and from that sentence he appeals to this court.
The State’s evidence tended to prove that the deceased married a daughter of a brother of the defendant, and that the defendant and the deceased were farmers. In the spring of 1905, the defendant rented a farm to the deceased and the latter was to pay one-third of the crops as rent therefor. About a week prior to the day of the homicide, the deceased made arrange ■
When Ed. Ballanee saw the defendant later in the afternoon, he asked the defendant why he had killed the deceased, to “which the defendant replied, “I had to.” Ed. Ballanee then said, “If you had to, why did you follow him?” The defendant at first denied following him, but afterwards said he did run after him because he was scared. Dr. H. J. Von Gremp testified that he was acquainted with the deceased and was called to hold a post-mortem examination on the 24th dnv of September. The first wound was one on the left side, «about two inches above the nipple and six inches from the point of the shoulder. The ball passed downward an inch or more before passing into the cavity, passing between the third and fourth rib. The second wound entered on the right side near the center of the hip bone, the ball passing forward. In the opinion of this physician, the wound that entered on the left side near the heart was fatal, and the deceased probably died within a few minutes. The evidence further shows that the deceased was a little over six feet tall, while the defendant was not more than five feet and nine inches in height. «Tames Cisco, who was a member of the coroner’s jury, assisted in washing the body of the deceased on the evening of the shooting, and discovered grape juice and grape hulls in the mouth of the deceased. He also discovered that the teeth and tongue of the deceased looked like he had been eating grapes. Constable McDaniel testified that he arrested the defendant the day after the shooting and that the defendant had a thirty-eight caliber pistol in his pocket at the time, which pistol was loaded. About a week before the shooting, the defendant tried to borrow a pistol from «Tohn Houtz, he visited Houtz’s place, stayed all
The defendant’s evidence tended to prove that he and his son were working in the corn field in question on the afternoon of the 22nd day of September, when the deceased came up behind him and said, “What are you God damn sons of bitches doing here?” When the defendant replied that they were cutting corn, the deceased said, “If you God damn sons of bitches don’t get out of here, I will kill you both.” The defendant’s evidence further tendedlo prove that the deceased drew a corn knife on him, and that the defendant backed off some twenty steps and into some standing corn when he shot deceased in the breast. The deceased turned, and as he turned the defendant fired the second shot. •The defendant denied shooting more than twice, but did not explain how he happened to empty from his pistol the three shells and one loaded cartridge near the place where the'deceased’s body was found. The defendant further proved, that the deceased made some threats against the defendant prior to .the day of the difficulty.
In rebuttal, the State proved that there were no tracks made by the defendant back into the growing corn.
At the close of-the evidence the court of its own motion instructed the jury on murder in the first and second degree, self-defense, threats both communicated and uncommunicated and the credibility of witnesses. And at the request of the defendant, the court gave two instructions. The defendant saved his exceptions to all the instructions given on behalf of the State.
I. The information in this case is assailed as insufficient because it is asserted that it does not allege that the mortal wound was inflicted by or was the re-
It is nest insisted that this information is fatally defective because it does not state in the charging part that Leslie B. Hutchinson was at any time prior thereto duly sworn and took upon himself an oath of office as prosecuting attorney of Maries county. By reference to the information, it will be seen that the prosecuting attorney alleges “that upon his own knowledge, information and belief and under his oath of office as such prosecuting attorney now here informs the court, ’ ’ etc. This was sufficient. It has never been required that the prosecuting attorney or the Attorney-G-eneral in presenting an information shall allege his title to his office and his compliance with all the prerequisites to his right to perform its duties. We think there is no merit-in this objection to the information and a similar objection made to the conclusion of the information for the same reason must be held unavailing.
III. Instruction number six given by the court of its own motion is alleged as error. That instruction advised the jury that if the defendant shot and hilled Copeland, while he, the defendant, was in a violent passion suddenly aroused by opprobrious epithets or abusive language then such hilling was not deliberate, but although such hilling was not deliberate, yet if it was done wilfully, premeditatedly and of malice aforethought as those terms had been already explained in the other instructions; the hilling would be murder in the second degree. This instruction is a correct statement of the law of this State on this subject. [State v. Gartrell, 171 Mo. l. c. 515 to 519.]
IY. Instruction eleven given by the court is also assailed. To understand this instruction it must be
V. Instruction number thirteen is challenged. In these words the court instructs the jury “that no words or epithets, however opprobrious or insulting, can justify the killing of the party who uses them. ’ ’ It
We have carefully examined all the assignments of error in connection with the record in this case, and are of the opinion that the defendant had a fair and impartial trial and that there is no reversible error in the record and the judgment is affirmed.