State v. Brown, 119 Mo. 527

State v. Brown

119 Mo. 527 | Mo. | 1894

Sherwood, J.

I. Various errors have been assigned by defendant’s counsel, now to be briefly noticed. And first as to the action of the trial court in striking out, at the state’s instance, the plea in abatement to the further prosecution of the cause. This plea sets out in substance: “That at the time of the alleged homicide and prior thereto defendant was and since said time has been confined as a convict in the state penitentiary and that said indictment does not charge or state said fact, and further that, defendant being said convict as aforesaid, defendant is not now subject of amenable to trial under said indictment.” This plea has for its basis, section 3963, Revised Statutes, 1889, which section, so far as necessary to quote it, is as follows: “* * * And if any convict shall commit any crime in the penitentiary, or in any county of this state while under sentence, the court having jurisdiction of criminal offenses in such county shall have jurisdiction of such offense, and such convict may be charged, tried and convicted in like manner as other persons; and in case of conviction, the sentence of such convict shall not commence to run until the expiration of the sentence under which he may be held: Provided, that if such convict shall be sentenced to death, such sentence shall be executed without regard tc the sentence under which said' convict may be held in the penitentiary.”

If, as the statute recites, “such convict may be charged, tried and convicted in like manner as other *535persons,” it is difficult to see why an indictment should contain any other or further allegations than are customarily inserted on ordinary occasions. Indeed, the statute by its very terms excludes the idea of any necessity for any statement being made in the indictment except in common form; for, if made otherwise, then certainly the convict would not be “charged * * * in like manner as other persons.” And on this point the analogies of the law may well be invoked where an indictment is for murder committed in the perpetration of another crime, in which case, the indictment always charges the murder in common form, and then upon the trial, evidence showing the perpetration of the murder while in the commission of another felony stands in lieu of all the distinguishing elements of murder in the first degree. State v. Meyers, 99 Mo. loc. cit. 112, 113, and cases cited.

The remark made in State v. Johnson, 93 Mo. loc. cit. 76, was consequently wholly obiter of the case and of the statute. And the case of State v. Adcock, 65 Mo. 590, cited as applicable in Johnson’s case, has no bearing whatever on the point in hand, because there, the only point decided or necessary to be decided, was that in an indictment for conveying instruments into a jail to aid the escape of a prisoner confined for felony, the particular felony for which he was thus confined need not be set out. It follows that no error occurred in striking out defendant’s plea in abatement.

II. Next for consideration is the motion made by defendant to quash the panel of forty, which motion is as follows: “Now comes the defendant in the above cause and moves that the panel of jurors summoned by the sheriff be quashed because: First. Said panel is summoned largely from the same neighborhood and the same locality and is composed more or less of brothers, fathers and sons and other relatives and *536kinsmen and is not summoned from the body of the county as the law contemplates and requires. Second. Because the conduct of the sheriff in so summoning the panel was improper and unjust to the defendant on the trial. Third. Because the defendant is a negro and has been unjustly discriminated against in that no members of his race were summoned on the panel of forty or otherwise.

“Edwih Silyeb & A. M. Hough,

‘‘Attorneys for Defendant.”

It is asserted that this motion is “supported hy affidavit,” but this statement is not supported by the record. And this court has times too often for citation held that the mere allegations in a motion are no proof of them. But could we go into the third ground alleged in the motion, we would be met at the threshold of the investigation with the obstacle that there is no evidence in this record that defendant is a negro. But were such evidence present, that defendant is a negro, there is nothing to show that the action of the sheriff deprived him of any right secured by the fourteenth amendment, because in the language of Mr. Justice StboNG in Virginia v. Rives, 100 U. S. loc. cit. 322, 323: “It is a right to which every colored man is entitled, that, in the selection of jurors to pass upon his life, liberty, or property, there shall be no exclusion of his race, and no discrimination against them because of their color. But this is a different thing from the right which it is asserted was denied to the petitioners by the state court, viz., a right to have the jury composed in part of colored men. A mixed jury in a particular case is not essential to the equal protection of the laws, and the right to it is not given by any law of Virginia, or by any federal statute. It is not, therefore, guaranteed by the fourteenth amendment.”

III. Error is. assigned on the action of the court *537in accepting on the panel of forty M. Grolts, who, when questioned whether he had served on the grand jury at the December term, 1892, answered, yes, sir. The indictment in this case was found on the sixth of December of that year, by a grand jury who were convened the previous day, and in the list of the grand jurors thus convened, the name of M. Grolts does not appear, nor on that panel is it found. It is true on the trial panel the name of Mathias Grata appears, but that is neither idem sonans nor idem significans with Grolts. And, furthermore, it does not appear that defendant took any objection or saved any exception to Grolts being accepted on the panel, and, therefore, could not raise the point for the first time in the motion for a new trial.' Moreover, in the absence of any evidence, we will not presume that the trial court permitted any one to make up the panel of forty who had served on the grand jury and assisted in finding the indictment, the charges of which were then about to be tried.

IV. The instructions given at the instance of the state have been preserved by the stipulation heretofore copied. As they are in stereotyped form, and as no complaint of them is made, it is unnecessary to notice them. The stipulation, however, while it carefully preserves the “objections and exceptions * * * both to the action of the court in giving the instructions given in the case, and to its action in refusing the one asked by defendant,” does not preserve that instruction, which is as follows: “If the jury believe from the evidence that the defendant did not intend to kill Mackin, but only to do him great bodily harm, then the offense will be only murder in the second degree, and the jury will so find in their verdict.”

But, taking the intention for the deed, we will consider the refused instruction. It was properly refused *538because the evidence shows in the clearest possible manner that the homicide was the result of long-settled and deadly hate. In this ease we have all the constituent elements of murder in the first degree; not a jot or tittle less. We have hatred; repeated threats, extending down to the time of the homicidal act; endeavors to prepare a lethal weapon, and, finally, we have the covert attack on the object of those threats, and he is stabbed in the bach, and the assassin still plies his knife on the body of his fleeing victim, till, with difficulty, he is forced back by Melton, as Mackin falls behind the chair, bleeding and covered with many wounds. Where the circumstances of homicide are thus peculiarly atrocious, thus brutally malignant, a court should not stultify itself by giving an instruction for murder in the second degree. State v. Kloss, 117 Mo. 591, and cases cited.

Everywhere, over the whole superficial area of criminal jurisprudence, the well-settled doctrine that circumstances of great atrocity and cruel and bloodthirsty malignity convert a homicide into murder of the highest grade and thus dispense with other proof otherwise necessary, meets you at every turn, and is taught by the horn books of the profession. This is a case where acts speak louder than words, and where a court, in giving instructions, will not rely upon and give full credence to the self-serving testimony of the party accused, to the virtual exclusion of the uncontradicted and incontrovertiblein the case. State v. Anderson, 89 Mo. 332; 1 S. W. Rep. 135; State v. Bryant, 102 Mo. 24; 14 S. W. Rep. 822; State v. Turlington, 102 Mo. 642; 15 S. W. Rep. 141; State v. Nelson, 118 Mo. 124; 23 S. W. Rep. 1088.

Under these facts and these authorities, the testimony of defendant that he “did not intend to Mil” the deceased, goes for nothing. The foregoing remarks *539also dispose of the claim that an instruction should have been given on manslaughter in the third degree.

Y. No defect is discovered in the indictment, and no error in the record, and we therefore affirm the judgment and direct that the sentence pronounced be executed.

All concur. Per Curiam.

On petition for certiorari, suggesting a diminution, a certified copy of the motion to quash the panel of forty, verified by affidavit is filed with the motion for a certiorari, from which it appears that by a misprision of the clerk, this affidavit was omitted, but this suggestion comes too late after final submission and error joined, and, even if granted, would not affect the decision' made, and the writ is denied.