194 Mo. 300 | Mo. | 1906
Lead Opinion
At the October term, 1903, of the circuit court of Bates county the grand jury of said county preferred an indictment against the defendant,Robert Feeley, charging him with murder in the first degree, in having, on the 8th day of September, 1903, at said county, shot and killed, with a pistol, one Martin Hoots. There were two mistrials. Thereafter, at the May term, 1905, of said court, the defendant was again put upon trial on the charge of murder in the second degree, convicted, and his punishment assessed at ten years ’ imprisonment in the penitentiary. He filed motions for new trial and in arrest of judgment, which
The evidence tends to show that the defendant was born and raised in Bates county, near a small town called Burdette. The defendant, áome twelve years before the trial of this cause, moved to Nevada, in this State, where he has resided ever since. On the 8th day of September, 1903, defendant left his home in Nevada for the purpose of visiting his father at his home near Burdette. He went by train to a little place called Archie, where he hired one Frank Calhoun to take him in a buggy to Burdette. While on the, road to said town the defendant pulled a pistol out of his pocket and remarked to Calhoun that he was a straight shot and a game man, and that he, Calhoun, would find it out before he got back. When Burdette was reached they saw Martin Hoots, the deceased, with a gun on his shoulder, walking along in front of a store owned by a man named Buel Mudd. There was evidence tending to show that defendant said, “There goes a dirty coward,” and that deceased, who appeared to have heard the remark, replied, “If he calls me a dirty coward I will take it up.” Deceased went into the store to buy some shot-gun shells, but was told that there was none in stock. Deceased then set his gun down in the store, and a friend picked it up and carried it away to the residence of Dr. Cash. David Roach was sitting on the porch of the store when defendant got out of his buggy. As deceased came out of the store, and was passing by Mr. Roach, he greeted the latter with, “Hello, Dave.” Defendant, who was near by, said, “Who in the hell are you?” Deceased replied, “I don’t know as it’s any of your business.” Defendant then said, “You are not so game but what I am just as game as you are; ” to which deceased replied, “If you are looking for trouble you are up against it.” Then defendant said, “You run on home,” and deceased rejoined, “You had better make me run on home. ’ ’ Mr. Roach then walked away with de
Deceased and one Jim Fenton, who lived near the edge of the town, had had some trouble in the forenoon of the day of the homicide, and deceased had been up to Fenton’s a time or two to see him. After he returned ■from Fenton’s house, the last time he was there, and about half an hour before the shooting, one Wilkerson introduced deceased to the defendant. The two men shook hands, the deceased remarking, “Give me your hand, Bob; I understand you are a brother of Crit and Frank Feeley.” Both men appeared to be friendly, and a short time afterwards they were seen by several persons standing near the hitch rack, drinking whisky. Calhoun, seeing the defendant’s condition, tried to get him away, and did succeed in getting him into the buggy. Just then the deceased passed by, on his way to the store, and said to the men standing there, ‘ ‘ The coward would not come out. ’ ’ About this time some man came out of the blacksmith shop and told defendant that deceased was talking about him, and defendant at once got out of the buggy and told Calhoun to go on home.
The evidence upon the part of the defendant tended to show that there were rocks at the place where the deceased fell when shot. Defendant also showed by a number of witnesses that his reputation for peace and good order at Nevada, where he lived, was good. He also testified in his own behalf substantially as follows:
Q. You may state your name to the jury? A. Robert Feeley.
Q. You are the defendant in this case, are you, Mr. Feeley? A. Yes, sir.
Q. How old are you, Mr. Feeley? A. Forty years old.
Q. Are you a married man. A. Yes, sir.
Q. Son of Uncle Norris Feeley of this county? A. Yes, sir.
Q. "Where were you horn? A. Out west of Burdette.
Q. "West of Burdette. Mr. Feeley when did you leave Bates county and Cass county and go south? A. About eighteen years ago.
Q. How much of that time, where did you live ? A. Nevada.
Q. How much of that time have you lived in Nevada? A. About twelve years.
Q. "What is your business ? A. Barber.
Q. On the 8th day of September, 1903, where did you start? A. Started to my father’s.
Q. Your father’s. State to the jury, Mr. Feeley, what time you got to Burdette about ? A. Why, I guess about four or five o’clock about.
Q. Four or five o’clock? A. Yes, sir.
Q. Well, just state to the jury when you got to Burdette and what you did ? A. I got out of the buggy
Q. Where was it you got out? A. Mr. Mudd’s store.
Q. Mr. Buel Mudd’s store?
Q. Mr.- Peeley, when and where was the first time you saw the deceased, Martin Hoots? A. I was standing on the store porch and he came up.
Q. Had you ever met or heard of Martin Hoots prior to that time? A. No, sir.
Q. What was he doing when you first saw him? A. He was going south.
Q. State to the jury what, if anything, he had? A. He had a shot gun.
Q. State to the jury what conversation, if any, you had with the deceased, or in his presence? A. Well, he came up and I asked Mr. Roach who he was'. He says, “He is Martin Hoots,” and he said, “It’s none of your business.”
Q. . Who said that? A. Mr. Hoots did.
Q. Mr. Hoots said, “It’s none of your business?”
Q. Mr. Peeley, what further conversation, if any, did you have there with Mr. Hoots? A. Why, Mr. Roach says, “that is Uncle Norris Peeley’s son,” and he said he had an order on Grit, .my brother, for some money and I told him I guess C'rit would pay it and he talked a few minutes and he walked on away.
Q. When he left you where did he go ? A. He went south.
Q. Which way? A. Towards the old blacksmith shop.
Q. Where did you go when the deceased started toward the old blacksmith shop, where did you go? A. I went out south of the store to get in and go home-.
Q. Who did you see, if any one, while you were at the buggy? A. Uncle Dan Cothrien.
Q. When did you nest see the deceased, Martin Hoots, Mr. Peeley? A. He came up to the buggy.
Q. What did he have with him, if anything? A. He had a shot gun.
Q. State to the jury what, if anything, Martin Hoots said when he addressed you? A. Well, he said, “The God damned son-of-a-bitch was a coward, he wouldn’t come out.”
Q. What did you do then? A. I stepped out of the buggy.
Q. Was anything further said there at that time between you and Mr. Hoots? A. No, sir.
Q. What became of Hoots? A. He went on north toward the store.
Q. Where did you go ? A. I went over behind the store to the old school house.
Q. Back of the old school house? A. Yes, sir.
Q. How did you happen to go over there? A. Well, Mrs. Fenton was over there and she called me to come •over.
Q. Did you have any conversation with Mrs. Fen-ton? A. Yes, sir.
Q. What was it? A. Back of the school house.
Q. Was it, or was it in the school house yard? A. It was in the school house yard.
Q. State what conversation, if any, you had with Mrs. Fenton in regard to the deceased, Martin Hoots? A. Well, I was talking with her and going to go up home with her and she said for me not to go with her, that her son Jim had been having trouble with Hoots and for me not to go, that he was a dangerous man to go .about, and I didn’t go.
Q. Where did you next see the deceased, Martin Hoots ? A. In behind the blacksmith shop.
Q. What, if anything, was said by you, or Hoots? A. Why, he called for me to come over where he was.
Q. Where were you when he called you ? A. I was In the school house yard.
Q. Did you go to the back end of the blacksmith shop where Hoots was? A. Yes, sir.
Q. What was said by yon or Hoots when yon got over there, if anything? A. Well, he wanted to know what God damned old woman that was I was talking to. I told him it was old grandma Fenton. He says, “God damn it. I have been up- to Fenton’s two or three times after Jim,’’ and he says, ‘‘The coward won’t come out.’’ He says, “I have had trouble with him.” He says, “I made him and sheriff Mudd leave town,” and this town belonged to him. And he asked me if I had any whiskey and I told him yes, and he wanted a drink and I pulled out my bottle and handed it to him and he says, “No, you take a drink.” I took a drink and then he drank and threw it down. He says, “This whiskey is no account, bad stuff,” and he says, “Just like you.” He says, “I am going to make you go home.” I told him if he would wait a few minutes I would go home without making. He says, “No, you ain’t, I am going to make you go now.” He stepped towards me and I stepped back and pulled my gun and told him to stand back, I didn’t want any trouble. He reached back to pick up a rock and then I commenced shooting.
Q. Now, Mr. Feeley, just stand up here and show the jury the position Hoots was in when you commenced firing the pistol. Just come down here, I guess you had better. Which way first was Mr. Hoots standing from you when you had this conversation with him? A. He was standing about like that (indicating).
Q. Where was he with reference to where I would be. Say I am Hoots, which way was he, what direction? A. I was west of Hoots about where you are standing.
Q. Now-just show the jury what position Hoots was in when you fired the first shot? A. Something like this (stooping down).
■ Q. Now, Mr. Feeley, how many shots did yon fire, do you know? A. No, I emptied my gun.
Q. Mr. Feeley, what was the position of Hoots when you fired the last shot? A. Well, it was about straight.
Q. You may state to the jury why you shot Martin Hoots? A. Well, sir, I did because I —
Mr. Jackson (interrupting): “I object to that.”
Court: “Overruled.”
A. I done it because I was afraid he was going to kill me.
Q. Was going to kill you? A. Yes, sir.
Over the objection and exception of defendant, the court gave fourteen instructions covering murder in the second degree, self-defense and reasonable doubt, only two of which, the eleventh and fourteenth instructions, are criticised. The grounds of objection and criticism will be reviewed later in this opinion.
It is contended by defendant that the court committed error in admitting in evidence, over the objection of defendant, the testimony of witness Calhoun, which was to the effect that while on the way from Archie to Burdette, defendant said to him, “he was a straight shot and he was a game man, and I would find it out before I got back.” The contention is that, while admitted as a threat, it is too vague and indefinite to be called such, and that even if it could be so called, it was inadmissible. That defendant did not know the ■deceased at the time is clearly shown by the evidence, and the threat could not, therefore, have been made against him in particular. In State v. Crabtree, 111 Mo. 136, it was held that general threats made by the defendant before the homicide, and having no reference to the deceased, were not admissible in evidence against him. But in that case the evidence showed that the threats applied to the members of defendant’s own
In the recent case of State v. Brown, 188 Mo. l. c. 465, Fox, J., in speaking for the court, held such threats to be admissible in evidence, “as indicating the existence of a frame of mind or disposition from which criminal actions proceed, and the action of the court in overruling the objections of defendant to the introduction of those statements is fully supported by the rule as announced upon this subject in State v. Grant, 79 Mo. l. c. 137; State v. Guy, 69 Mo. 430 ; State v. Hamilton, 170 Mo. 377.”
In Hopkins v. Com., 50 Pa. St. l. c. 15, the rule is stated in the following language: ' “Nor was it necessary that the premeditated malice should have selected its victim. If the jury believe that the defendant had formed the deliberate design to kill somebody, and in pursuance of that purpose, within an hour after declaring it, did kill McMarity, the Commonwealth has a right to insist upon his conviction of murder in the first degree, and that they might thus insist, they had a right to prove his declaration an hour before the deed. ”
In Brooks v. Com., 100 Ky. 194, it is held that gen
We do not think the threat proven in the case at bar was admissible in evidence as part of the .res gestae, because it had no immediate connection with the homicide, which occurred several hours afterwards, but we do think, according to the weight of authority and the rule announced in our own decisions, it was admissible to show general malice and a disposition on the part of the defendant to do an act which was criminal, such threat to be given such weight by the jury as they, under all the circumstances, thought it entitled to.
The point is made by defendant that the court erred in permitting W. O. Jackson, counsel for the State, in course of his argument to take a pistol, and have Mr. Ludwick, the prosecuting attorney, assume different attitudes in front of the pistol in order to demonstrate what could or could not have been the range of the shots. But no such occurrence is shown by the bill of exceptions, and cannot, therefore, be considered by this court. Matters of exception which occur in the presence of the court cannot be shown by affidavits, unless the court refuses to sign the bill when presented to him upon the ground that the matters therein stated, or some of them, are not true. [State v. McAfee, 148 Mo. 370; State v. Grant, 144 Mo. l. c. 66; State v. Lamb, 141 Mo. 298; State v. Reed, 154 Mo. l. c. 126.]
Defendant testified in his direct examination to going to the school house yard and talking to Mrs. Fenton, and to returning to a point behind the blacksmith shop,
It is said for defendant that the court erred in permitting the State to show the general reputation of deceased when not drinking, when the defendant had only introduced evidence tending to show that deceased was a quarrelsome and dangerous man tvhen drinking. The argument is that such evidence upon the part of the State was improper, not rebuttal, and brought forward an issue not raised by the defendant. The record shows that, in rebuttal to testimony offered by defendant tending to show that deceased was a quarrelsome and dangerous man when drinking, the State introduced evidence tending to prove that the general reputation of deceased in the neighborhood in which he lived, for peace and quiet and good citizenship, was good.
In support of the contention of defendant, Keener v. State, 18 Ga. 194, is chiefly relied upon. In that case the deceased, who was a railroad conductor, 'was killed by Keener in a brothel. Upon his trial for murder the defendant proposed to prove the general character of ■deceased for violence in the particular place where the difficulty occurred, to which the State objected and the evidence was excluded. The case went to the Supreme Court of that State, and the judgment of conviction was reversed upon the ground of the exclusion of said evidence, the court expressly repudiating the general doctrine that a person can have but one general reputation, and that in the neighborhood only in which he lives, and holding that ‘ ‘ a man may have different general characters, adapted to different circumstances and localities; that is, a character for rail-cars and a character for the brothel; a character for the church and one for the street; a character when drunk and a character when sober. ’ ’ Wigmore on Evidence, vol. 2, see. 1616, is an
In the case of Hussey v. State, 87 Ala. 121, it was said: “There was no error ih allowing the State to prove the good character of the deceased for peace and quiet. The ground of objection to this evidence seems to he that the general reputation of the deceased had not been put in issue, but only the particular traits of his character as a quick-tempered, violent man, easily provoked, and likely to provoke a difficulty. If these traits of disposition are provable at all — which we do not decide — they are not separable from the question of character. It is plain that the State could rebut this evidence by proof of defendant’s [sic] reputation for
Whether or not, in a trial for murder, where it is. doubtful whether the homicide was committed with malice or from a well-grounded apprehension of danger, the defendant has the right to show the quarrelsome and dangerous reputation of the deceased, as tending to show that the killing was not in malice, regardless of the fact that he may not know it at the time of the killing, as well also as to whether the defendant has the right to show such reputation under any circumstances, the authorities are much in conflict. In State v. Hicks, 27 Mo. 588, the rule that defendant must at the time of the killing have knowledge of the reputation of deceased for being a quarrelsome and dangerous man, was expressly recognized by an instruction asked by defendant himself, which was refused by the trial court, and which this court ruled should have been given. While that ease was followedin some respects in State v. Keene, 50 Mo. 357, the rule was not followed respecting the necessity of knowledge on the part of defendant of the general reputation of the deceased in order to entitle bim to introduce evidence tending to show that deceased’s general reputation was that of a quarrelsome and dangerous man. The court said: “When the homicide is committed under such circumstances that it is doubtful whether the act was committed maliciously, or from a well-grounded apprehension of danger, it is very proper that the jury should consider the fact that the. deceased was turbulent, violent and desperate, in determining whether the accused had reasonable cause to apprehend great personal injury to himself.” The same rule is announced in State v. Bryant, 55 Mo. 75. The same question was before this court again in State v.
In the case at bar, defendant testified that he shot deceased because he was afraid deceased was going to kill him, and under such circumstances evidence of the character of the deceased for being quarrelsome and dangerous when drinking was properly admitted.
A point is made upon the failure of the court to instruct the jury upon the question of motive when requested by defendant to instruct upon all the law of the case. No instruction upon this particular feature of the case was necessary for, according to the defendant’s own testimony, he shot deceased because he was afraid he was going to kill him. In other words, his motive in
Instruction number eleven is claimed to be erroneous upon the ground of absence of evidence tending to show that defendant voluntarily entered into the difficulty. This contention is groundless. The .evidence tended strongly to show that defendant was rather anxious to get into a difficulty with someone, particularly the deceased; certainly he did not try to avoid it. His frequent aggravating remarks in the presence of and directed^ toward the deceased for the evident purpose of provoking him into a difficulty, his shooting him while unarmed and even after he was down, and all the circumstances connected with the killing, show that defendant not only voluntarily entered into the difficulty for the purpose of wreaking his malice upon deceased, but that he sought and provoked it, for such purpose. But, says defendant, even if there was evidence authorizing the instruction, the form and wording in which it is couched is erroneous. In support of this - position defendant relies upon State v. Rapp, 142 Mo. 443. Instructions numbers one and two, commented on in that case, deprived the defendants therein of the right of self-defense if they voluntarily entered into the difficulty, whatever their motive, even though it might have been for the sole and only purpose of defending themselves against the assault of their adversary, while under the law it is only where the difficulty is entered into for some unlawful purpose, such as taking the life of the
In the brief of counsel for defendant it is insisted that instruction fourteen is erroneous in that it is a direct comment upon the evidence of "W. T. Simpson, who was a witness for the State. The position is that no other witness was impeached in the way indicated by the instruction, and that the effect of it was to bolster
A further contention is that the court should have instructed the jury to acquit the defendant of murder in the second degree. The argument is that the evidence of Simpson, a witness for. the State, and the only person who saw the killing, makes it murder in the first degree, and that defendant was not tried for that crime; that all the evidence showed it to be murder in the- first degree or nothing. When a person is indicted for murder in the first degree, as in this case, the State, with the permission of the court, may elect to prosecute him for murder in the second degree, and the defendant will have no right to complain of the course of the State in electing to prosecute him for a less than the highest grade of homicide. [R. S. 1899, sec. 2369; State v. Tal
The issues in this case were submitted to the jury upon instructions which covered every feature of the case and which were very fair to the defendant. They were fully justified by the facts disclosed by the record. According to the testimony of defendant himself, and all the facts connected with the homicide adduced in evidence, defendant was guilty of murder in the first or second degree, or else the killing was in self-defense. The jury found him guilty of the offense for which he was put upon trial, and we think the verdict was fully warranted by the evidence. The judgment should be affirmed. It is so ordered.
Rehearing
An opinion was delivered in this ease on the 31st day of January last, affirming the judgment of the trial court, in which we declined to pass upon instructions numbered eleven and fourteen for the reason that neither the record filed in this court, nor the original bill of exceptions filed with the clerk of the circuit court, showed that any complaint was made of the action of the court in giving said instructions. In motion for a rehearing, however, filed February 6th inst., our attention is called to the fact that by stipulation between counsel for the defendant and the State, filed with the clerk of this court on January 3, 1906, the motion for new trial is correctly set out in appellant’s brief at pages five to eight, inclusive, which shows that the point upon the action of the court in giving all instructions in behalf of the State was duly raised by the. motion. On January 4,1906, another stipulation entered into by the same counsel, correcting the record in other respects, was also filed with the clerk of this court. The records of this court fail to show the filing of either of these stipulations, and when we came to the investigation of the case we found but one, that being the stipulation filed January 4, 1906, which referred in no way to the instructions, and it being so unusual for two different stipulations to be filed for the correction of the record in the same case, and especially without asking or obtaining the permission of the court, we overlooked the stipulation filed January 3d. It may not be out of place to say here that no record, after being lodged with the clerk of this court, can be changed without the permission of the court, duly entered of record at the time. But owing to the importance of this case we have duly considered the questions raised by counsel for defendant upon the instructions, and have modified the opinion in this respect. The motion for rehearing is overruled.
