State v. Burns, 148 Mo. 167

State v. Burns

148 Mo. 167 | Mo. | 1899

GANTT, P. J.

Tbe defendant, a negro man, was convicted in tbe circuit court of Scott county, of murder in tbe first degree, and appeals from tbe sentence.

Tbe defendant and bis wife, Mag Burns, resided with the defendant’s mother in tbe town of Commerce, in Scott county. They bad been married about two years.. Tbe evidence shows defendant bad maltreated bis wife and she bad left him several days prior to tbe twenty-fourth of July, 1897.

On tbe morning of that day tbe wife called upon tbe constable, Mr. Watson, and requested him to go with her to her husband’s borne to get her clothing, saying she was afraid to go by herself, that be would kill her. Tbe constable accompanied her. Tbe defendant was not at home when they first went to tbe bouse.

Tbe constable asked defendant’s mother to give tbe wife her clothing, but she refused. While they were talking in tbe yard in front of tbe bouse, defendant returned and tbe constable told defendant what they wanted. He replied “all right,” passed into tbe bouse and soon emerged with a double *171barrel shot gun in his hands and opened fire, first shooting the constable and as his wife ran he shot her in the bach, the load going entirely through her body. The constable managed to get bach to the marshal’s office, and sent him to arrest defendant. The defendant’s wife died almost instantly in the garden of the lot on which she was shot.

At the October term, 1897, the grand jury returned the following indictment:

“The grand jurors for the State of Missouri, duly impaneled, charged and sworn to inquire within and for the body of Scott county, Missouri, upon their oaths present and charge that one Will Burns, at the county of Scott and State of Missouri, on the 24th day of July, A. D. 1897, in and upon one Mag Burns, then and there being, feloniously, willfully, premeditatedly, deliberately, on purpose and of his malice aforethought, did make an assault, and with a dangerous and deadly weapon, to wit, a shotgun loaded then and there with powder and leaden balls, which he, the said Will Burns, in his hands then and there had and held at and against her, the said Mag Burns, then and there feloniously, willfully, pre-meditatedly, deliberately, on purpose and of his malice aforethought, did shoot off and discharge, and with the shotgun aforesaid and the leaden balls aforesaid, then and there feloni-ously, willfully, premeditatedly, deliberately, on purpose and of his malice aforethought, did shoot, strike, and penetrate and wound her, the said Mag Burns, in and about a vital part of the body of her, the said Mag Burns, to wit, in the back part of the body of her, the said Mag Burns, giving to her, the said Mag Burns, at. the said county of Scott, and'State of Missouri, on the said 24th day of July, 1897, with the dangerous and deadly weapon, to wit, the shotgun aforesaid, and the powder and leaden balls aforesaid, in and upon the back part of the body of her, the said Mag Burns, one mortal wound, of the width of about one inch, and of the depth of about three *172inches, of which said mortal wound she, the said Mag Burns, at the county of Scott and State of Missouri, on the said 24th day of July, 1897, then and there of the mortal wound aforesaid instantly died; and so the grand jurors aforesaid do say that he, the said Will Burns, her, the said Mag Burns, in the manner and by the means aforesaid, feloniously, willfully, premeditatedly, deliberately, on purpose and of his malice aforethought, at the said county of Scott and State of Missouri, on the said 24th day of July, A. D. 1897, did kill and murder against the peace and dignity of the State.”

The court, on application of defendant, appointed counsel to defend him. The cause was continued on application of.defendant to the April term, 1898. At the April term a motion to quash the indictment was filed, heard and overruled.

Another application for continuance was filed on account of an absent witness, one Snow, whose residence was alleged to be in Charleston, Mississippi county, but at the time absent in Paducah, Kentucky. This motion was likewise overruled, and thereupon defendant was arraigned and pleaded not guilty. A jury was impaneled, the evidence heard, and a verdict of guilty of murder in the first degree, as charged in the indictment, rendered.

I. The motion to quash was properly denied. The indictment charged every fact essential to a good indictmeht for murder.

The objection that it fails to charge a deliberate, premeditated, felonious killing, is without foundation. It is in the most approved form and follows long established precedents. [State v. Snell, 78 Mo. 240; State v. Steeley, 65 Mo. 218; State v. Green, 111 Mo. 585; State v. Kindred, page 270, this volume; 3 Chitty’s Grim. Law, 752; Wharton’s Precedents, 117a and 117b.]

II. Neither can we convict the circuit court of error in refusing a continuance at the April term. It was a matter *173largely in its discretion, and little or no diligence was exhibited in the attempt to get the witness Snow.

III. The court instructed on murder in the first and second degrees, and no exception was taken to the failure of the court to instruct upon any other grade.

The instructions in fact covered every phase of the case, and were very liberal to defendant. There was really no substantial evidence, which justified the instruction given in behalf of defendant on the plea of insanity.

The objection to the State’s instruction that if defendant killed his wife because she was unfaithful to her marriage vows, or killed her because of his jealousy, he was guilty of murder in the first degree, is without merit. There was ample evidence that this was the reason he killed her. This identical instruction was approved by this court in State v. Anderson, 98 Mo. loc. cit. 473-474; State v. France, 76 Mo. 681; State v. Holme, 54 Mo. 153; 2 Bish. New Grim. Law, sec. 708; State v. Sawyer, 35 Ind. 80.

IV. The objection to the impeaching evidence of Clara Hunter was properly overruled. Defendant’s mother was a witness and had testified to going into the house immediately upon defendant’s return home and shutting the doors, and saying she was going to take care of no one; that she didn’t know what he would do; that she had warned Watson and defendant’s wife to go away, and that she had asked her son, what is the matter with you, are you crazy, or what is the matter?

The inference is inevitable that she anticipated the tragedy from what had occurred between herself and defendant. She was asked if she didn’t tell Clara Hunter immediately after the shooting, in the presence of the dying woman: “That is just what Will said, if ever he saw Mag again he would kill her, and die or go to the pen, and now he has made his word good.” She denied making the statement.

*174Clara Hunter was a witness and sbe was asked if defendant’s mother made this statement to ber and testified tbat sbe did. It was competent to impeach the witness as to this statement. Sbe bad testified defendant would not kill bis wife because be loved ber so, and if sbe made the statement imputed to ber sbe knew be bad' threatened to kill ber, and if the jury believed the impeaching witness, it would go far to weaken ber other testimony.

Y. The point tbat the constable, Watson, assisted the sheriff in bis duties about the courthouse after having testified as a witness in the cause is wholly without merit. He did not select or summon any juror, and bad no connection whatever with the jury.

Equally groundless is the point tbat one of the panel of jurors was not a resident of the county. The testimony largely preponderated tbat be was a citizen of Scott county, bad resided at Vanduser, bad voted at the spring election in said county, and bad expressed bis intention to vote tbat fall at the general election in said county; tbat be was an old resident of the State.

Counsel has the merit of originality in assigning as error the failure of the court to poll the jury of its own motion without a demand therefor by defendant or bis counsel.

It is probably the first time in the history of jury trials in this State tbat such a contention has arisen. It is not strange, however, tbat it has never been asserted before, for the reason tbat-there is no merit in it.

VI. Counsel for the State did not transcend the evidence in alluding to the impeaching evidence of the witness Clara Hunter. He repeated ber evidence verbatim in commenting upon the evidence of defendant’s mother. It was legitimate for tbat purpose and was employed in tbat way •only.

VII. Upon the merits, the testimony establishes murder in the first degree. It is another case of wife murder, á *175class of crimes which has become very common. We have been called upon to consider three cases at this call of the docket, in which unoffending and helpless women have been shot down or butchered without the slightest provocation. The circumstances surrounding the killing are pregnant of a deliberate and premeditated purpose on the part of the prisoner to shoot his wife. She reckoned well when she declined to go after her clothing without the protection of an officer of the law.

She understood all-too-well the malignity of the defendant’s nature. The cowardly and brutal shot in the back of the fleeing, unoffending woman, the use of the deadly weapon, the opportunity to brood over her leaving him, the preparation of the gun, the significant conduct of his mother running into the house and closing the door in anticipation of the shooting, all combine to dissolve every doubt that the crime is one of murder in the first degree, and the jury properly responded to their duty in so finding.

The case has no mitigating circumstances in it, and as there is no error in the record, the judgment of the circuit court is in all things affirmed, and it is ordered that the sentence of the law be executed.

Siieewood and Bubgess, JJ., concur.