178 Mo. 48 | Mo. | 1903
From a conviction of murder in the first degree the defendant appeals. The murder was charged to have been committed in New Madrid county on August 19, 1902. The trial and conviction occurred in said county on December 5, 1902. On August 19, 1902, the negroes in and around Sikeston had a picnic or barbecue in Big Prairie township on what is locally known as Frank Smith’s place. It would seem that both whites and blacks attended the barbecue, separate tables having been provided for each.
Late in the evening several young white men, among others the deceased, George Marshall, went to this barbecue, and sometime after dark the deceased and several other white boys went to a hay shed or barn, estimated to be from fifty to one hundred yards from the barbecue grounds, with some negro girls of bad character. While there the evidence tends to show quite conclusively that the deceased asserted that one of the negro girls had stolen his money, and he was attempting to get her to give it to him, but she denied having it and ran from him and left the barn and he pursued her. The evidence tended to show that the defendant was standing about midway between the barn and the barbecue grounds, and the negro girl and deceased ran by him.
The defendant testified in his own behalf that he shot deceased with a revolver and the testimony for the State was practically unanimous that as deceased and the girl passed defendant he drew his revolver and fired one shot in the direction of deceased but too high to strike him. The firing of this shot stopped Marshall’s pursuit of the girl and he turned and started toward defendant, whereupon defendant lowered his pistol and shot deceased in the bowels near the navel.
After shooting deceased defendant fled and hid himself in a barn where he was found next day. There was no evidence of any previous difficulty between deceased and défendant.
The information is challenged and we reproduce it. It is as follows:
“State of Missouri, County of New Madrid, ss.
“In the circuit court of said county, September term, A. D., 1902.
“Now comes Murry Phillips, Jr., prosecuting attorney of New Madrid county, Missouri, and under his oath of office and upon his own knowledge, information and belief, and for amended information herein, gives the court to be informed and understand, that one Gus Gregory, on the 19th day of July, A. D. 1902, at the county of New Madrid and State of Missouri, in and upon one George Marshall then there being, feloniously, willfully, deliberately, premeditatedly, on purpose and of his malice aforethought, did make an assault; and that the said Gus Gregory, with a certain revolver pistol, the same being a deadly weapon and then and there loaded and charged with gunpowder and leaden balls, and which said revolver pistol he, the said Gus Gregory,
“And so the said Murray Phillips, Jr., prosecuting attorney as aforesaid, under his oath of office and upon his own knowledge, information and belief does say, and give the court to be informed, that the said Gus Gregory him, the said George Marshall, in manner and form aforesaid, and by the means aforesaid, feloniously, willfully, deliberately, premeditatedly, on purpose and of his malice aforethought did then and there at said county of New Madrid, kill and murder, against the peace and dignity of the State:
‘ ‘ Murry Phillips, Jr.,
"Prosecuting Attorney of New Madrid county, Missouri.
“Murry Phillips, Jr.
‘ ‘ Subscribed and sworn to before me this 18th day of September, A. D., 1902.
“John A. Mott.
“Clerk circuit court.
“Filed September 18,1902, John A. Mott, Clerk.”
I. The first assignment of error is that the court erred in refusing to permit defendant to file a demurrer after having entered his plea of not guilty and after the jury, was sworn. As the sufficiency of the indictment can be raised in this court for the first time even though ■ no demurrer or motion to quash was filed in the circuit court, the refusal to* permit it to be filed after issue joined is of no moment in this court, but we will examine into the information to ascertain its sufficiency. The point is that the information was not verified by the affidavit of any person who was a competent witness in the case but was upon the knowledge and information of the prosecuting attorney himself.
Since the amendments to article 3, chapter 16, Revised Statutes 1899, by the Acts of March 13, 1901 (Laws 1901, pp. 138-139), section 2477, Revised Statutes 1899, is applicable to prosecutions for felonies and expressly authorizes the prosecuting attorney to file in-formations verified by his own oath, and his “verification may be upon information and belief.”
There is no conflict between this section and 2478, Revised Statutes 1899, as amended by the Laws 1901, page 139.
The prosecuting attorney may proceed by informa- • tion verified by his own oath upon information and belief or he may báse his information upon the oath of some person competent to testify in the case or upon the
Though not made a ground of objection by defendant, we notice that the prosecuting attorney uses the word “with” before the words “a certain revolver pistol” immediately after charging the assault. Lest we be understood as approving this .form, we take occasion to say that while not constituting reversible error, “it is evident that the grammatical and rhetorical construction of the information is much impaired by the departure” from the usual form. [State v. Turlington, 102 Mo. loc. cit. 651; State v. Gleason, 172 Mo. loc. cit. 268;. State v. Evans, 158 Mo. 603; State v. Wilson, 172 Mo. 420; State v. Gray, 172 Mo. 435.]
The information was well enough and the demurrer should have been overruled even if timely filed. As to the proposition that the court should have sustained the objection to any testimony under the indictment, obviously no error occurred in overruling it because the information was entirely sufficient, and, moreover, such a method of assailing the sufficiency of an indictment has more than once received the condemnation of this court, as an innovation in criminal practice not to be tolerated. [State v. Risley, 72 Mo. 610; State v. Meyers, 99 Mo. 107; State v. Duncan, 116 Mo. 288.]
II. It is next insisted that the court should have given the eleventh instruction offered by defendant which authorized the jury to take in consideration the evidence as to the previous good character of defendant. The answer to this contention is that the court of its own motion had already given an instruction fully covering the subject in its instruction numbered 9, and we have always ruled that when this is done it is not error to refuse another reiterating the charge, and we have condemned the giving of a great multiplicity of instructions.
III. It is insisted that the court should have sub
Our attention is again called to Laws 1901, page 140, wherein the court is required to instruct on all the law applicable to the case,- whether requested or not.
In State v. Vinso, 171 Mo. loc. cit. 591, we considered this change in the statute and held that it did not relieve defendant of the duty of saving his exceptions to the failure of the court to so instruct. [State v. Albright, 144 Mo. 643; State v. Cantlin, 118 Mo. 100; State v. Williams, 136 Mo. 293.]
The contention of the defendant that the fact that deceased was pursuing the negro girl was sufficient to arouse sufficient passion in defendant to reduce his offense to murder in the second degree, is untenable. There is not the slightest pretense that the girl bore any relationship by blood or marriage to defendant, or any other relation which would have justified him in assuming her defense in the circumstances, nor was the deceased armed or threatening the life of, or great bodily harm to, the girl when they passed defendant, and when he began to shoot at deceased. There is no evidence of any just provocation which would reduce this homicide to murder in the second degree.
IY. Because the counsel for the State asked the witness Dickerson, “Where were you at the time Marshall was shot?” it is insisted that the question was prejudicial for the reason that it assumed that deceased was shot. In view of the issue tendered and defendant’s
When a fact is conceded by both sides it is not error for court or counsel to treat it as an established fact.
V. The court fully instructed the jury on the weight of the evidence and credibility of witnesses, in the form long approved by this court, and the seventh assignment is likewise without support in the record.
VI. The verdict was fully supported by the evidence and, hence, the eighth and ninth assignments must be overruled. The failure to establish the motive of defendant did not entitle him to an acquittal nor mitigate his offense after the evidence had shown that he deliberately shot and killed the deceased without any provocation whatever. [State v. David, 131 Mo. 396, 397.]
While the evidence discloses facts discreditable to deceased and his white companions in their association with the negro women on the night of the homicide, it is free from any justification on the part of defendant. His act in shooting the deceased was without any just or lawful provocation and was utterly indefensible.
The case was fairly tried and there appears no reason for interfering with the verdict of the jury and the sentence of the circuit court.
The judgment is affirmed and the sentence which the law commands is directed to be executed.