141 Mo. 626 | Mo. | 1897
— From a conviction of murder in the ■first degree for having on the twenty-ninth day of August, 1896, shot to death with a pistol his daughter Mattie Ree Hunt, defendant appeals. The homicide was committed in Boone county, where the trial was had at the November term, 1897, of the circuit court of that county.
The defense was insanity.
The facts were but few, and about as follows:
At the time of the homicide the defendant, his wife, and their daughter Mattie Ree Hunt, lived on a small piece of property of which defendant was the owner, in Columbia, Missouri. He had for some tiine been wanting to trade the town property for a small tract of land in the country for the purpose of moving onto it with his family, to which the wife would not consent, and over this and other disagreements they had many quarrels and bitter controversies. Defendant was given to drink and intoxication, and when under the influence of liquor the quarrels between himself and wife were the more frequent. It was shown that ho had on divers occasions threatened to take the life of his wife, the deceased, and himself. Defendant had several sons, all of whom lived in the country. On the evening of August 29, 1896, defendant returned home from a visit to one of his sons in the country, and shortly thereafter began quarreling with his wife. At the time of his return his daughter, the deceased, was in town, having gone there to buy some groceries for the family, and upon her return found the defendant and her mother still quarreling, whereupon deceased said to her mother: “I would not stand
It was shown on the part of defendant that some seven years prior to the homicide defendant had two slight sunstrokes which affected his mind, but this evidence as to the condition of his mind was contradicted by the State.
The trial was had to a jury, selected from a panel of forty jurymen, four of whom, viz., James Gribbs, William Prather, John Ballenger, and W. H. H. Maxwell, were challenged for cause, and the name of one Armistead Selby, who was regularly sworn , found to be qualified to sit upon the trial and accepted, appeared upon the record'and list of jurors furnished to the defendant as Armistead Delly, until within two hours of the time in which defendant was required to pass upon the panel and to enter upon his trial, when the court over the objection of defendant by entry of record required the clerk of the court to substitute the name of Armistead Selby for that of Armistead Delly. Each of the jurors named, except .Selby, answered upon his examination touching his qualification as a juror that he had formed and expressed an opinion as to the guilt or innocence of the defendant from newspaper accounts which purported to give a detailed statement of what was supposed to be the facts in regard to the homicide, and that he still entertained that opinion, which it would require evidence to remove; but that notwithstanding such opinion he could give the defendant as fair and impartial a trial as though he had never formed an opinion or had never heard of the ease. The action of the court in overruling defendant’s challenges to these jurors is assigned for1 error, and State v. Culler, 82 Mo. 623, and State v. Taylor, 134 Mo. 149, are relied upon as sustaining that
Nor do we think that there is any merit in the point that the name of Armistead Delly appeared on the list of forty qualified jurors from which defendant made his challenges, and from which the panel of twelve were to be selected to try the cause instead of Armistead Selby, which was in fact the name of the juror. In the case of the Queen v. Mellor, 27 L. J. Mag. Cas. 121, preparatory to the defendant being put upon his trial for murder, the name of A., a juror on the-panel, was called, and B., another juror on the same panel, appeared and by mistake answered to the name of A. and was sworn as a juror. The prisoner was convicted. The fact that B. had answered for A.
But two of the instructions given on behalf of- the State are criticised by defendant, the third and fifth. They are as follows:
“3. He who willfully, that is, intentionally, uses upon another, at some vital, part, a deadly weapon, such as a loaded pistol, must, in the absence of qualifying facts, be presumed to know that the effect is likely to be death, and knowing this, must be presumed to intend death, which is the probable consequence of such an act, and if such deadly weapon is used without just cause or provocation, he must be presumed to do it wickedly and from abad heart. If, therefore, you find and believe from the evidence in this cause that the defendant took the life of Mattie Ree Hunt by shooting her in a vital part with a pistol, with manifest designs to use such weapon upon her,
“5. The court instructs the jury that where there is evidence introduced as to an attempted escape by the defendant who has been charged with an offense, to avoid his arrest by the officers of the law and trial, such attempt to escape, in the absence of qualifying circumstances, raises a presumption of guilt, and if you find from the evidence in this case that the defendant did attempt to escape to avoid arrest and trial, this is a circumstance to be considered by you, in connection with all the other evidence, to aid you in determining the question of the guilt or innocence of defendant.”
The criticism on the third instruction is that it is in conflict with the State’s sixth instruction, by which the jury are told “that the State must prove to the satisfaction of the jury beyond a reasonable doubt that the defendant committed the crime as charged in the indictment; that is, that the killing was done willfully, deliberately, premeditatedly, and of malice aforethought, while by the third instruction the jury are-told that these facts need not be proved by direct evidence, but may be deduced from all the facts and circumstances attending the killing, and if they can satisfactorily and reasonably infer their existence, from
This instruction was passed without criticism by this court in State v. Duestrow, 134 Mo. 44, and when read in connection with the sixth given on behalf of the State and the first given upon behalf of the defendant, in which the jury are told that the burden rests upon the State to show defendant’s guilt beyond a reasonable doubt, and if it had failed to do so they must acquit, no substantial objection can be urged against it. By the State’s sixth, and defendant’s first instruction, he was given the benefit of any reasonable doubt as to his guilt from all the evidence adduced upon the trial which relieved the State’s third instruction of any possible objection that could be urged against it.
The State’s fifth instruction is challenged upon the ground that there was no evidence upon which to predicate it. On the night after the shooting defendant left home, and the next morning a searching party that had been organized after his departure to hunt for ' him, after searching for him several hours that night, found no trace of him until about 3 o’clock the next morning, when they found the horse which he had ridden standing in the road with the saddle on, and bridle oft, about seven miles north of Columbia, The horse had been hitched to the fence but had slipped the bridle. Defendant was not found until the follow
We are unable to see wherein the court failed to instruct upon all questions of law involved in the case which were necessary for the information of the jury in giving their verdict, nor has it been suggested by counsel for defendant wherein it failed to so do. On the other hand, the instructions given are clear and explicit, and covered every phase of the case.
Within four days after the rendition of the verdict of the jury in this cause, to wit, February 12, 1897, defendant filed his motion to set aside the verdict and for a new trial, and before the same was disposed of, but more than four days after the verdict, to wit, February 18, 1897, defendant filed and asked the court to allow an additional or amended ground for a new trial, the following, to wit:
“17. Because the panel of forty men from which the jury was selected, and the final jury selected in the case and before whom the same was tried, were not legally constituted in this, that at least one of those who were sworn to try said cause was biased and prejudiced against this defendant, and had expressed his opinion after he had been selected as one of the pan el of forty, and prior to his selection as one of the trial jurors; and said juror wholly failed to disclose upon his voir dire examination that he was so biased and prejudiced against the defendant as aforesaid.”
Which said amendment the court, refused on the eighteenth day of February, 1897, to which ruling and order of the court the defendant then and there excepted at the time.
Thereupon the defendant offered and asked the court to allow him to file said amended ground “No. 17 and the accompanying affidavit” as an independent or supplemental motion for a new trial in said cause; which motion and offer the court refused and overruled; to which refusal and order of the court the defendant then and there excepted at the time.
The contention is that the court committed error in refusing to allow defendant to amend his motion for
Moreover, the motion for a new trial upon the ground suggested in the proposed amendment, and in the supplemental motion, was not supported by the affidavit of the defendant, which was absolutely essential. It must have been supported by both the affidavit of the defendant and his counsel; nothing less will answer the behests of the law. State v. Howard, 118 Mo. 127; State v. Burns, 85 Mo. 47.
Finding no error in the record, we affirm the judgment, and direct the sentence announced to be executed.