110 Mo. 322 | Mo. | 1892
The defendant was indicted for the murder of Jack Majors, a brakeman on the ‘Prisco railroad, and has appealed to this court. The second count, upon which the defendant was found guilty of murder in the first degree, was the following: “And the grand jurors aforesaid, upon their oaths aforesaid, do further present and charge, that Newt. Blunt, alias Bud Blunt, on the twenty-sixth day of December, 1890, at the county of Newton, and state of Missouri, in and upon one Jack Majors, then and there being, feloniously, wilfully, deliberately, premeditatedly, on purpose, and of his malice aforethought, did make an assault; and a certain revolving pistol, which was then and there a deadly weapon, loaded and charged with gunpowder and leaden balls, and which said pistol so loaded as aforesaid, he, the said Newt. Blunt, alias Bud Blunt, in his right hand then and there had and
“(Signed) John T. Stubges,
“Prosecuting Attorney of Newton County.”
The testimony in this cause is very voluminous, covering several hundred pages, and it has not been indexed.
‘ ‘I started through the coach; he passed me in the ladies’ coach and sat down; Majors turned around and went into the smoker; I came into the ladies’ coach and he went into the smoking-car from where I saw him; I
“ I walked through the car, and as I came alongside where Mr. Blunt was sitting he had a bottle out and a big knife, and he had taken the cork out of the-bottle, and I says, ‘Here, you can’t drink in this car;’' he says, ‘Well, bring on your son of a bitch,’ and he-struck at me like that, and I says, ‘You don’t want to-do anything like that,’ and he struck at me again and took a drink; I says, ‘Now, don’t drink in this car; if you want-to drink and have a good time, go to the mail-ear, the smoker; nobody will bother you at all there; ’ and he reached again with his knife, and that, time the knife slipped across there. .
“That was the third time, and I saw the young-man that was sitting on the yon. side was moving this-way. Í turned ’round, and walked back three or four seats, and the young man got up and went into the head part of the car. Mr. Blunt got up and went into another seat where there was another man sitting. And I came along by the seat again, and he says, ‘Am I in your charge?’ I says, ‘Just the same as every other passenger is on this train — to see that you get good treatment, that nobody abuses you, and to see whether you get off at your station; ’ and he says, ‘ I want you to bring on your sons of bitches, and I will show you what I will do to them.’ I says, ‘G-o into the-
“I had one hand on the rail, one foot on the platform, and one on the step; I reached over and called Bruce Kinlock — he was an employe on the train — and Isays, ‘Bruce, Bruce! Oh, Bruce!’ and the passengers came up to the door, and just at that time I heard Jack Majors say, ‘Let me out there.’ I says, ‘Jack, look out! look out, Jack! this man has got a knife.’ And Jack says to him, ‘Come in this car; I want to go in
Anna Brown, who was in the ladies’ car at the time of the homicide, testified that Gillies, the conductor, came around and was taking up the tickets and spoke to Blunt, the defendant, and the latter got up and spoke to him, using profane language, when Gillies tried to induce him to be quiet, and that, as Gillies passed on out to the door of the ladies’ car and
Mrs. Meador corroborates the testimony of Anna Brown as to Gillies talking to Blunt, though she could not distinguish what they said, and as to the latter going to the door, walking pretty fast, and, when he reached the door of the ladies’ car and went out toward the smoker, Blunt arose, took his revolver out of his pocket with his right hand, raised it up so witness could see it, opened the door with his left hand, and went immediately out and very quickly afterwards the shots were fired.
James Morain testified that he heard Gillies tell Blunt he would have to go into the other car if he wanted to drink something out of a bottle. This was at a time when Blunt had taken the cork out of a bottle and was about to take a drink out of it, and as he raised his arm to drink from the bottle, when Gillies put Blunt’s arm down, and the latter struck at him with his knife; struck at him three times, and then, when Gillies went on out of the door towards the smoker, Blunt immediately followed him, and then the witness heard two pistol shots fired on the platform «between the coaches and saw the flashes, etc.
Similar testimony was given by J. W. Beaver as to Gillies telling Blunt not to drink and the latter persisting in doing so, and then, when Gillies went to the door, followed him out with his pistol drawn, and in a
Corroborating testimony, substantially the same as that first noted, was given by Mrs. Mary Beaver, and by Miss Alice Walker.
Joseph Courter testified that, when Grillies came around taking up the tickets, he took up Blunt’s ticket, punched it, and told him to change cars at Pierce City, when Blunt remarked, “Just as I damn please,” and that he would like to find the “damn son of a bitch that interfered with him in getting on that train,” when Grillies told him that nobody interfered with him; that he just wanted him to wait till some ladies could get off the car, so that he could get on; then the witness testified to Blunt’s taking his knife out, taking the cork out of a bottle of whiskey, offered it to witness who declined to drink, and then Blunt started to take a drink himself, when Grillies came up and told him not to drink any whiskey in there; that if he wanted to drink whiskey and have a good time to go forward into the smoker, and, when Grillies told Blunt that, he struck at Grillies several times with his knife, and Grillies left him and went away to the end of the car, when Blunt got up, put his knife in his pocket, pulled out his revolver, and said he “would kill the damn son of a bitch before he left the train.” The witness then states that, expecting trouble, he went forward onto the platform, between the ladies’ car and the smoker, and was immediately followed by Grillies and by Blunt, when the latter repeated the remark he had previously made, that he “would like to find the damn son of a bitch that had made trouble with him in getting on the train,” when Grillies told him that nobody had been trying to make him trouble. Then witness tried to go into the door of the smoker heard Grillies call, “Bruce, come here!” and met others
The testimony of this witness as to what occurred on the platform between the two coaches, is substantiated in several particulars by that of ¥m. Allen, who was in the smoker and at the door of it, when Jack Majors came to the door and asked permission to pass. Allen had just heard the cry of “Bruce, Bruce! ” when he arose and went to the smoker door, and saw the conductor and a man standing close together there on the platform of the ladies’ coach and talking, and the conductor was close to the edge of the platform, and when witness, having let Majors pass, stepped in between two seats in the smoker, he heard the pistol fire twice and saw the flashes, and the next thing Majors staggered into the coach fatally wounded.
The foregoing, it is believed, contains all of the prominent facts necessary to a full understanding of the record, except the additional fact that Majors, though mortally wounded in Newton county, died in Lawrence county.
I. Before entering on the merits of this cause, some preliminary questions must be disposed of. Affidavits
As to the evidence, it is contained in the original bill of exceptions, though done in an awkward way. The case of State v. Griffin, 98 Mo. 672, therefore, does not resemble this one, and, in determining whether proper exceptions were saved in reference to instructions, motions, etc., we treat the original bill of exceptions as controlling and supplying any defects of the character indicated, though such defects and omissions be apparent in the transcript forwarded here in the first instance.
II. The motion in arrest, as one of its grounds, alleges that “the grand jury had no legal right to inquire into the offense charged, by reason of it not being within the jurisdiction of the court.” This ground of objection is supposed to refer to the facts of the mortal wounding of Majors in Newton county, and his death in the county of Lawrence.
We do not think that these authorities and constitutional provisions apply to this cause, because there can be no dispute that the criminal offense, to-wit, the giving of the fatal stroke, the murder, was committed in the county of Newton, where the indictment was found, and where, consequently, the circuit court in that county had jurisdiction of the offense. The fact that the death occurred a short time after the county boundary of Lawrence county had been reached was a mere
The author cited states that, whether, in homicidal crimes, a blow be inflicted in one jims diction and death follows in another, the crime has been perpetrated in either, or, if in either, in which, is a question whereon there is some divergence of judicial opinion; and he states that in Massachusetts a statute authorizing prosecution in the county of the death has been held not to violate a constitutional provision of that state; he points out, however, that in Wisconsin, which possesses a constitutional provision very much resembling our own, it has been held that the trial must occur in the county where the offense was committed. 1 Bishop on Criminal Procedure, sec. 50; Wheeler v. State, 24 Wis. 52. So is the ruling in Arkansas, and in other states. Dougan v. State, 30 Ark. 41.
But the learned author says that: “The true view appears to be, that the blow is murder or not, according as it produces death within a year and a day or not; and, therefore, in all cases an indictment lies in the county where the bloio is given.” Sec. 51.
Hence, in this case, there can be no doubt as to the indictment having been found in the proper county, the county where the offense was committed, the blow given, and the circuit court of that county had, therefore, jurisdiction, and the indictment is, therefore, not obnoxious to the objection now being discussed. Under
III. And the indictment properly charges, for •such is the fact, that the mortal wound was inflicted in Newton county, but that the death occurred in the eounty of Lawrence. 2 Bishop on Criminal Proced- ■ ure, sec. 531.
IY. Objection is also taken to the verdict, on the ground that it is insufficient to support the judgment. Here is the verdict:
“We, the jury, find the defendant guilty of murder in the first degree as charged in the second count of the indictment, and we find him not guilty as to the first count of the indictment.
“W. E. Jeeeebs,
“Foreman.”
It is sufficient to state that, the verdict in form •obeys the statute, and is correct according to the decisions of this court. State v. Montgomery, 98 Mo. 399; State v. Jackson, 99 Mo. 60.
Y. The motion for a new trial, it is now proper to examine. It contains many grounds upon which it is insisted that the defendant is entitled to have his motion granted.
a. And, first, as to the alleged absence of the juror, C. K. Pickens. It is stated that the court permitted this juror, before the cause was submitted to the jury, to separate from the other eleven jurors, who remained in the courtroom in the jury box, and to go some distance from the courtroom and beyond the view of the court, of the defendant and of the remaining jurors, and against the objection of the defendant,
The affidavit of J. W. Brunk is filed in support •of this charge, in which it is stated that the juror
If it be true that the juror was absent as stated, the defendant should then and there have excepted to the action of the court, and saved his exceptions, which is the only way by which things occurring in the presence of the court, can be preserved for review in this court. State v. Hayes, 81 Mo. loc. cit. 514, 577; State v. Musick, 101 Mo. loc. cit. 273; State v. Brewer, 109 Mo. 648.
There are cases where affidavits will be received by the trial court, and reviewed by this court, as for-instance in regard to the misconduct of jurors when out of the presence of the court (Morgan v. Ross, 74 Mo. 318); but that is not the point now before us. But another and very cogent reason, as it seems to us, exists, which will justify the action of the lower court and of this court in rejecting said affidavit, and that is that the affidavit, though offered in support of the motion for a new trial, was not made or filed till after the motions for new trial and in arrest had been filed and overruled, and the affidavit for appeal filed and the appeal granted.
b. Various other grounds urged in the motion under consideration may be grouped together under one head and thus disposed of: First, no exception was saved to the action of the court in impaneling the jury, nor, second, in permitting attorneys to assist the-prosecuting attorney, nor, third, is there any evidence preserved as to what the order of the argument actually was, nor, fov/rth, any evidence preserved showing a separation of the jury. These points, therefore, are not before us for consideration; and cannot be noticed. Exceptions to the ruling of the-
c. And it is almost superfluous to observe that the motions for a new trial and in arrest are no evidence of the truth of the grounds therein stated.
d. The defendant, however, did except to the action of the court, in giving and refusing instructions, and excepted as to the overruling of his motions for new trial and in arrest, as already stated. The instructions, given on behalf of the state, speaking of them in a general way, are such as have frequently received the approval of this court. These instructions included murder in the second degree, and also included the theory of self-defense, and this is as far as the instructions went.
e. But special objection is urged to an instruction, or the latter portion of the last instruction given on the part of the state. Said objectionable portion of the instruction is in these words: “If you believe from the evidence that defendant wilfully provoked or voluntarily entered into a difficulty with a pistol ready for use, and that, in the course of such difficulty so provoked or entered into by him, he shot and killed Majors, there is no self-defense in this case; and in such case it is immaterial what the peril of the defendant was at the time of the shot.” This instruction is clearly wrong when considered with reference to State v. Partlow, 90 Mo. 608, and other kindred cases which have since followed that ruling. But that instruction though abstractly incorrect was a harmless error, for there was absolutely no self-defense in the case.
We have patiently read this record, and have been unable to discover the slightest trace of any occasion arising on the part of the defendant for resorting to
/. It is claimed that an instruction should have been given for manslaughter, but to this' we do not agree. There are no circumstances in this wdiole record indicating hot blood, nor any legal provocation tending to produce hot blood in the defendant. He was the aggressor throughout from the turbulent beginning to the fatal ending. He had no cause to be offended when rudely pushing his way up through the crowd of passengers descending from the cars, because he was requested to “wait a minute till the passengers get out.;’ It was the duty of the brakeman and of the conductor to endeavor to prevent the departing passengers from being jostled or hustled, as they were seeking egress from the cars, and it was equally the duty of the defendant to wait till the outcoming passengers had safely alighted before he attempted to ascend the steps of the cars; but this duty the defendant did not observe. The obligation of the carrier begins with the reception of the passenger, and it does not end until the latter has safely alighted from the car. Safety and convenience of ingress to, and egress from, the cars is a part of the contract of carriage, and this must include the right of the passenger to leave the car without being unnecessarily or rudely crowded or jostled by incoming passengers while he is descending the steps of the car. This right of the passenger implies on the part of the carrier the corresponding duty to protect the
“It has a right to require that passengers shall preserve order; that they shall be seated, and not stand up in the passage way or upon the platforms; and that they shall abstain from any act which tends to impede or interrupt the conductors and managers in the transaction of their necessary business.” Sec. 980, and cases cited.
“The conductor is regarded as supreme in authority on the train, as if a captain on board ship, and his acts are the acts of the company.” Sec. 964.
And the carrier is liable in damages, if it fail to eject from the cars drunken, disorderly or riotous persons, who assault or annoy other passengers. Sec. 965.
Another author says: “The rules of law require a passenger to conduct himself with decency, and not to render himself an offense or annoyance to others, and, for failing to observe these rules, a man may and should be removed from the car.” Cooley on Torts [2 Ed.] 774.
Under these principles of law, the conductor and brakeman were in the right from the beginning, and the defendant equally in the wrong. Then take his conduct on the train, his every act and profane and indecent expressions were evidently intended to provoke a collision between the conductor and himself, and, failing in inducing ■ by his boisterous
When he reached the platform, he crowds cne conductor down on the steps of the car, as if to throw him off the train, frequently repeating his insulting expressions, until the conductor finding himself in serious danger was forced to call for Bruce, when Majors, responding to the call, came, laid his hand on the defendant’s shoulder, and asked him to come into the smoker, when the defendant drew Majors forward, then shoved him backward, and when Majors fell, he shot him as he attempted to arise, and then fired on the conductor, barely missing him.
Majors had the right to go to the rescue of the conductor, first, in the endeavor to preserve order and the peace on the cars, and, second, to prevent felony from being committed, or the conductor from being seriously injured, and the act of Majors in doing this cannot be characterized as being an assault, or as meriting the murderous treatment he received.
Carefully considering the whole testimony in this cause, we feel constrained to say that there is not a single palliating feature in this cause which even tends to reduce the crime of the defendant below murder in the first degree; on the contrary, his entire conduct, from beginning to end, shows “a heart regardless of social duty and fatally bent on mischief.”
We affirm the judgment, and order that the sentence pronounced by the law be .executed. R. S. 1889, sec. 4298; State v. Pagels, 98 Mo. loc. cit. 317.