*1 AND CASES DETERMINED ARGUED THE BY COURT SUPREME OF THE OE STATE MISSOURI
AT THE 1922. (Continued 294.) Volume THE STATE v. GLENN HEMBREE and STOKLEY Appellant.
JACOBS, Two, 19, 1922. Division June offering Defendants evidence in DEMURRER: Waiver. their interposed at demurrer close of own behalf after overruled, contention that waived their State’s evidence was a conviction. evidence was insufficient to sustain State’s Degree: Evidence. -Murder in Second Sufficient The entire case, killing admit de- in this in which defendants evidence self-defense, was to sustain a convic- claim sufficient ceased degree. of murder in the second tion Degree: Only Murder First Verdict for for INSTRUCTION: only Degree. the court instructed murder Where Second finding complain degree a verdict cannot first defendant degree. favor- A verdict more the second murder a matter would warrant him than the able rehearing, Held complain. And motion for cannot
(1) SUPREME COURT OF MISSOURI,' State v. Hembree that, where it is admitted that one of defendants did not fire gun deceased, specifically that killed and the court instructed Jury degree either convict him of murder the first or to *2 acquit him, complain convicting he cannot of a verdict him of degree, first, murder in the second because is the test of error presence prejudice prejudiced the and said defendant not by verdict, and, second, (Sec. 3908, the because the statute R. S. 1919) specifically any judgment forbids the reversal of a for “de- imperfection prejudice fect or which does not tend to the of the rights upon merits,” substantial of the defendant the and it the is law that where a defendant is convicted of lesser crime than the complain one in the indictment he cannot that the court refusing erred in to instruct on such lesser crime. Conspiracy: Understanding: -:4. Formal Sufficient Evidence. conspiracy may proven by A circumstantial evidence and its attending circumstances, existence deduced from without showing understanding. of a formal And the in this support question case was sufficient to instruction an on of a conspiracy between two defendants to deceased. murder -: Omission of Reasonable Doubt. 5. Instructions must be read telling together, jury and an instruction if that one of the de- deliberately, “wilfully, premeditatedly fendants and of his malice aforethought, by shotgun shooting killed de- ceased, you degree,” guilty is will'find him of murder in the first theory question erroneous on the it of reason- not omits the doubt, by question given. fully where that is covered others able Referring Jury -: Motive: to Information. An instruction 6. “you beyond telling jury .the if further find and believe doubt the defendant shot and killed deceased reasonable as you regardless charged, guilty, will find then the defendant motive,” charged” proof does not the use of the words “as erroneously refer to the information ascertain fully given having the crime. The elements of other every crime, fairly covered element of the were not relegated instruction to the information alone for said charge. facts of Request. Credibility Character: No -: of Witnesses: If de- opinion instruction, given that a in the usual of the fendant subject credibility witnesses, form, defec- require it to take in that does not into consideration tive “character,” duty request is his an instruction more point, request upon if he fails to make such direct appeal complain that be heard on the instruction cannot required to consider the character of the witnesses. have Yol. v. Hembree -: Two Reference to Defendants: Reasonable Doubt: Both. subject referring An instruction on the of reasonable doubt jointly tried, to both of indicted and is not ob- two jectionable, jury' given the other instructions authorize the where guilty, guilty, to find both or both not or one and the other , guilty, not warrant. the facts
Appeal Ing, Butler Circuit Almon Court.—Hon.
Judge.’ Affirmed. Woody appellant.
Henson £
for
(1) There is no
upon
evidence
this record
jury,
to base the verdict of the
and defendants’ motion
new trial
should have been sustained. State v.
*3
Hopkins, 278 Mo. '388; State v. Larkin,
State v. Hembree and Jacobs
tending
proving
to
was no
in the record
evidence
prove
conspiracy
to kill deceased.
between defendants
42
Daubert,
State v.
199
State v.
158;
S. W.
Porter,
May,
(5) Instruction
Mo.
Mo. 135,151.
v.
238; State
per-
prejudicially
erroneous because
number two is
they
could
if
to
mits
reasonably
return a verdict
satisfactorily
infer
existence
up
go
must be
elements
to make
the crime.
Guilt
Nothing
beyond
else
reasonable doubt.
established
v.
26;
suffice. State v.
S. W.
"Wheaton,
will
Bass,
Mo.
Goldstein,
(6)
the infor-
Instruction number 11 refers
and not
crime,
to ascertain the elements
mation
erroneous. State
instructions,
is, therefore,
to the
McCaskey, 104
181 S.
State v.
Constitino,
(7)
(1) the evidence is for the Where it-is reject testimony weigh give to or the credit and jury to appellants’ tragedy account of the the fit. If see justi- killing given then the was full credit, be judges credibility the were the but fiable, weight to be attached to their the tes- and the witnesses timony. tending evidence to substantial There was. guilty the crime for which defendants show '5 Yol.. y. Hembree State
were
this conrt will not
State
convicted, and
interfere.
v.
State v.
186 Mo.
McKenzie,
717;
Williams,
Mo.
177
conspiracy
(2)
prove
necessary
It
a
is not
to
cir-
shown
facts and
evidence;
direct
be
in
con-
cumstances
the case.
were close and
shooting-.
companions.
Hembree
be did
stant
admitted
bad
deceased;
bad made threats toward
Jacobs
sexually
deceased;
when
intimate
leaving
the wife
killing
back
the scene of the
turned and went
leaving
declared,
time,
few
minutes; when
second
upon inquiry
matter,
of Mrs.
of what
Roark
nothing.
offered
Board’s;”
Just been over
“Ob,
to
country. All
to
deceased
leave the
these facts
$20
guilt.
pointed
98
Walker,
to
others
Jacobs’
State v.
Dar-
Flanders,
234;
118 Mo.
v.
Mo.
State v.
State
104;
ling, Mo.
234 Mo.
State v.
Fields,
623;
State v.
199;
(3)
Sykes, 191 Mo.
728;
v.
Mo.
Roberts,
conrt is not limited
adverse
passing
party,
in
all evidence
the case
but considers
upon
sufficiency to
v.
its
sustain the verdict. State
Meagher,
App..
Mo.
576;
Martin,
State v.
Mo.
(4)
Lackey,
This
REEVES,C.Defendants were infor degree with murder mation the first and convicted degree. of murder the second After unsuccessful they judgment, motions for a trial and in new arrest of appeal. plea Their was' self-defense. day February,
'It was that on the 26th County they in the Butler, and killed one gun. Charlie Board with a shot For the State, the showed that both of village the defendants resided at the or toAvn Qulin county said the deceased lived few miles slough body there, from on a where water, he had right-of-way drainage contract to clear a a district; a brother of the deceased and another working right-of-way were for deceased on said not far appel- house where lived; deceased that the appeared morning lants about ten o’clock in the and in- quired parties of said if deceased were at home and being in the answered affirmative if asked They proceeded fact. sure deceased, to the home of the engaged where per- found in the of some chores about the formance house. APEIL
Yol. TEEM, *6 Hembree and time until some deceased home of the at the remained They ate their afternoon. middle of the the toward During various con- visit, him. dinners with by witnesses. several were had overheard as versations appellants were and the deceased the At one time negotiating respect one two to a trade for by at the and exhibited the deceased owned revolvers large a loads, a revolver without One was time. fact particularly as it was of such discussed, was and cartridges conveniently not could be obtained size that subject negotiations. the of the it. This was for revolver revolver was loaded. The smaller single-barreled Hembree carried shot-
Defendant gun during gun deceased used said visit, and, object, ap- shooting or some one at a can general pellants in the air. The had thrown attitude parties be on the surface seemed to one of friendliness. day, appellant course of the Jacobs told de-
In up- awas warrant out for him and, that there ceased inquiry as deceased to who held the warrant, said responsible Temples it. At one Owen indicated he to deceased that time he same community, give that he, Jacobs, would leave flight. him in his Here it to aid noted $20' Temples was the former husband of the wife that Owen that deceased and his wife had deceased; appellant months, than two less married wife, and of deceased’s there uncle was an indicating relations between Jacobs and the Apparently had been intimate. the deceased wife exchange property effected no trade between together, parties, the three the house left^ pistol carrying his smaller loaded and deceased his pistol place larger unloaded. three came to the brother, Elmer Board, the deceased’s where Jesse working right-of-way, on the were Eoark above- and after some conversation the stated, in-' MISSOURI, OF COURT SUPREME and Jacobs. v. Hembree purpose tlieir home Qulin at dicated a to return return to house, that must his own deceased said go suggested whereupon that the three could it was portion together. They respective ways crossed of their slough log, a foot a short distance aforesaid working, Roark where Elmer Board and gone along the road when had a short distance report shortly gum muffled was heard and there- appellant carrying gun, Hembree, after came slough. running back toward the A considerable dis- appellant running tance behind him observed Jacobs was *7 place gun report from the where the of the was heard. place Jacobs then faced about and returned to the gun of the had come. sound When he away again, witnesses, came who resided in the vicinity, inquired of him whether there was trouble reply. received and an'evasive Attention had been at- suspicious tracted'by upon rather these circumstances, and body investigation, the of the deceased was found gun in the road with wound the breast.' This instantly larger had been fatal. The revolver was in pockets jacket one of a worn the deceased, and right his the smaller revolver was in hand. appellant admit that Hembree shot and say killed the but that the deceased, shot was fired in According testimony there, to their self-defense. had feeling during day no ill tragedy, been amicably proceeding along three were the when the road suddenly the deceased made regarding a statement coming his father-in-law, who he said had been to his pockets, proposed house with his hands his and that he against take measures him if to some repeated, appellant and then having accused Hembree with had Board, trouble Elmer brother of the deceased. Appellants testified that the deceased was assured adjusted that such trouble had forgotten, that without more ado the deceased became contentious appellants behalf in his own and informed both of the 9 1922. Yol. Hembree and v. State of them, bullets for each he to or had kill, intended proceeded Hem- revolvers; draw both his gnn, inflicting with his shot
bree then shot deceased some the deceased had walked which, wound from after expired, steps, that both fell and teii or twelve away scene from the of the trouble. ran appellant previously There against the life of the deceased.' made threats Jacobs had pertinent be the course of will discussed facts Other opinion. evidence each I. the conclusion the State’s At interposed demurrer com failing grant plain that the court erred here requests. respective their When demurrers Demurrer. appellants proceeded to were overruled offer doing testimony in in so their defense and waived right heard their demurrers at close [State v. Mo. Ellis, evidence. 290 State’s 219, 222 845; Jackson, 18, 283 Mo. S. S. W. W. Belknap, 39, 45; c. State v. 1. c. Mann, 67, Martin, 217 S. W. Lackey, W. 700, c. S.
680, Starling, W. 207 S. *8 testimony appel- all of the II. At the close the requests peremptory for renewed lants in the They of demurrers nature and were overruled. complain that this was error. The statement Sufficient of a few facts will be sufficient to showthat a Evidence. jury. for case was made testimony The against had made showed Jacobs threats the life he had deceased; intimate with the wife while she was wife of deceased Temples; of the Owen day tragedy appellants of the that particular inquiry in their as to whether the deceased they spent home; at was his several hours with evincing any without the deceased business reasons MISSOURI, COURT OF SUPREME State t. Hembree and (there existing therefor were'no intimate social relations them); appellant between Jacobs told deceased proposed that there was a warrant ont for him and give flight; shooting to aid in that after the his $20 away of the deceased both the fled from the appellant tragedy, scene of the returned to immediately upon the scene thereafter, and then in quiry, as to whether there made an trouble, evasive answer which tantamount a denial. by it Moreover, was admitted them that Hembree had story shot and killed deceased detailed each of them was of such nature as to warrant the drawing’ in adverse inferences therefrom. The muffled report gun, indicating gun pressed o.f that the against body deceased, became a matter of position body serious consideration tended, theory the deceased rather to contradict the by appellants. self-defense advanced One of pocket, revolvers inwas his and the other, while in his position ques inwas as hand, to raise a serious jury, tion view the attendant circumstances, got it to how there. was sufficient to jury. [State raise an issue for the McKenzie, Mo. l. 699, Williams, l. c. 135 et seq.] appellant As
III. Jacobs, the court instructed only degree, on murder the first whereas the verdict degree. was for murder the second The fact that the jury returned a ap verdict more favorable to Jacobs than the instructions would Pe^ant Instruction Only for Murder. warrant not a matter about which he complain. justly repeatedly This court has finding returned verdict that if a held the defend guilty of an offense below that ant the indict information and ment or authorized the instructions complaint. of a [State not a basis Hutchison, R. Sec. S. 186 W.
Vol. v. Hembree
State giving in- an not err in trial court did IV. The question conspiracy. jury aof on the struction support instruction. sufficient to proven may by conspiracy circumstantial A Conspiracy. evidence and its existence be deduced showing attending without formal circumstances, from understanding. 302; 236 S. Kolafa, W. [State v. 98 Mo. 414; Walker, 397, l. c.
v. Bersch, 158.] W. Porter, State v. S. 104; 95, l. gave motion own
V. The court its separate The second instruction instructions. seventeen language of the information told followed if the defendant Hembree that Glenn "wilfully, deliberately, premeditatedly and of ReasonableDoubt. aforethought, shotgun, shot with "his malice shooting you will Board, find killed Charlie degree.” in the first murder question Appellants complain of reasonable that put in instruction. That doubt should have this fully question covered other instructions, the law instructions are to read con- Burgess, [State as S. a whole. sidered W. Murray, 193 State v. 210 S. Arnett, Reppley,
W. W. Jones, 225 S. Complaint against VI. made instruction num- subject grounds 11 on the .on the motive, bered it information refers ascertain the ele-
ments of the crime.
do not thus read
We
Referring
"you
the instruction. It told the
that if
Jury to
beyond
further find and believe
a reasonable
Information.
defendant,
Hembree,
doubt
Glenn
charged,
you
Board
then
killed
will
Charlie
regardless
guilty,,
proof
the defendant
find
say
be as reasonable to
It would
this
motive.”
charge
charged”
to the
“as
contained in
reference
a reference to
and not
the information.
other
*10
OF MISSOURI,
SUPREME COURT
v. Hembree and Jacobs.
v. Constitino,
the case
attention is called to
Our
181
in an
1157, where,
l.
was
obiter,
S. W.
might
prepared
suggested
thus
that an instruction
Burgess,
“We the information or reference to indictment it left invalid, an instruction unless no rendered than reference to determine their other alternative such ’’ duty. author then said that no The learned such state of say in that and so we case, facts existed as the here, fully fairly every had other instructions covered relegated crime and the were not element charge. the information for the alone to facts as Herring, Mo. 514, [State v. given by Instruction numbered
VII. court credibility subject of witnesses Appellants complain usual form. in the instruction said was defective because it Character said instruction was defective because it of Witnesses. into consideration the character of the wit- say They question sig- that that specially nesses. appellants If this case. desired an nificant instruction point, they requested more direct as to have should failing they an to do instruction, so have no Herring, complaint. supra.] [State basis Instruction numbered 12 covered the VIII. sub ject doubt and referred to reasonable both complain that the defendants. have been drawn so that the Reference may acquitted have either one of the de- Both Defendants. if a reasonable xendants, doubt arose m guilt. as to his minds As above stated, all the in together, structions must be considered and instruction Vol. v. Hembree might both find
numbered 7 told might guilty, guilty, or or both not facts would guilty, as the one not find one instruction, this misled july was not .warrant. appellants. against point we rule the assignments of all the careful examination A any errors appellants fails to reveal made error may justly of them either of which *11 judgment the. accordingly of complain and we affirm Bailey, concurs G., It is so ordered. trial court. sitting. notG., White, foregoing opinion PER CURIAM::—The Reeves, opinion adopted is of the court. All of the
C., judges David E. in concur; J., result. Blair,
ON MOTION FOR REHEARING. in PER CURIAM: motion their for a again rehearing directed attention our to the fact appellant jury only court as to instructed Jacobs degree, specifi murder the first on and that the court cally jury told either to convict him of murder in acquit degree him. the first- turned stated, As re degree murder in verdict for the second as to appellants, and this both disobedience to the court ’s assigned . as error. instruction “The said this court:' test
As of error is the (State prejudice” presence 329), of v. Hill, 273 Mo. appellant was entitled to if an instruction on degree, in the second murder not could have been prejudiced because did that which the court say might do. it failed to
Assuming appellant Jacobs was entitled to an degree, murder the second if instruction convicted degree, in the first murder court’s failure to in- degree in the on murder second struct would have con- appellant prejudiced by error, Jacobs was not stituted MISSOURI, SUPREME COURT OF Melvin v.
State ex rel. Hackmann. opinion, as said and, verdict of has complaint.
no basis for
general
Section
Revised
our
3908,
Statutes 1919,
jeofails, expressly
proceeding
statutes
that a
forbids
imperfection
be declared invalid “for
other defect or
prejudice
not tend to the
does
the substantial
upon
rights of the defendant
the merits.” This statute
susceptible
easy
concerning
construction,
in civil
this court
cases,
similar statute
has said: “Where
the court held out
just
though
arrive
verdict,
at a
light.to
eyes by
false
them or
threw dust
bad
yet may
it
instructions,
not be disturbed.”
[Brook v.
l.
Barker,
c.
Mockowik Railroad, 196
l.
550,
Moreover,
is the law that where
appellant
an
is “convicted of a lesser crime than
complain
in the
he cannot
indictment,
error in re
fusing
charge
on such lesser crime.”
[17 C. J.
People
United
Perkins,
States v.
The motion Us overruled. All concur. THE rel. STATE ex H. MELVIN et Commis al., Special
sioner of District of Harrison J-H Road County, HACKMANN, GEORGE E. State Audi tor. Banc,
In June Description: By Existing Improvement. Name: BOAD1: PUBEIC requires petition, statute filed Where commissioners district, special improvement public road of a of a benefit points improvement road, “the between to state is de improvement petition asking sired,” already for the road Highway, existing beginning known as Jefferson at the township boundary ending a certain at north state