167 Mo. 291 | Mo. | 1902
The defendant was indicted for the murder of one Prophet Everett. He was convicted in the criminal court of Jackson county at its April term, 1901, of murder in the first degree, and sentenced to be hanged. From the sentence and judgment he appeals.
Both the defendant and deceased were negroes. They were but slightly acquainted. On Saturday night, December 22, 1900, they met in a saloon in Kansas City and engaged in a game of cards. They had some disagreement over the game, whereupon deceased arose from the table at which they were playing, and remarked to defendant, “I don’t want to bother and fuss with you,” and, walked to another part of the room. Shortly thereafter defendant stepped up to deceased and said to him, “I will have something to do with you.” Deceased then left that saloon and went to another, which was about two blocks away. Shortly after deceased left the saloon where he and the defendant had been engaged at cards, defendant took from George Washington, another negro, a pistol which Washington had in his pocket, at the same time remarking to him, “I am going to keep it, I need it,” and put it in his pocket. He then went to the saloon to which deceased had gone and found him watching a game of cards. Defendant after entering the saloon stepped up behind deceased, and after standing there a few minutes and without any warning to him held the pistol, which he had taken from Washington, within about three feet of the back of the head of deceased, and fired, when deceased at once fell forward upon the floor dead, the ball having entered his head at the back part, passing through the brain, and producing instant death. Deceased was unarmed.
Just at the time of the shooting, two Kansas City police officers entered the front door of the saloon. They were just in time to witness the killing. Immediately after firing the shot and seeing his victim fall to the floor, the defendant rushed out of the back door of the saloon. One of the officers
The first error assigned by defendant complains of the action of the trial court in causing to be placed upon the panel of jurors certain persons whom he claims were not selected in accordance with the statute. It appears from the record that on the first day of the April term, 1901, of the criminal court of Jackson county, the following order was made, to-wit: “Now, at this day it appearing to the court that the regular panel of jurors is incomplete, the court orders that the following named citizens who are present in open court be placed on the regular panel for the April term, 1901, to-wit, M. M. Brennan, Miles McNally, Frank Sarver, William Kelly, and W. P. Mulvihill.” Thereafter at -the beginning of the trial of said cause the defendant objected to the panel of jurors upon the ground that it contained the names of jurors not drawn or selected in accordance with the provisions of article 2, chapter 42, of the Revised Statutes of 1899, namely, M. M. Brennan, Miles McNally, Frank Sarver, William Kelly and William P. Mulvihill, in that, they were not drawn as provided by said section, and, that a jury could be made from the regular panel, and that said jurors were not selected by the court. The objection was overruled, and defendant duly excepted.
Section 3Y95 of article 2, Revised Statutes 1899, with respect to “juries in counties containing cities of 50,000 and less than 300,000 inhabitants,” provides for the manner of drawing juries in any circuit court or court having jurisdiction of felony cases in such counties, while section 3801, of the same chapter, expressly confers upon such courts the power to direct from time to time the number of jurors toi be summoned for said court and to make such rules and orders as it
The defendant also objected to the panel upon the ground that it contained the names of jurors who were not qualified under the provisions of section 3199 of said statute, namely, M. M. Brennan, Miles McNally, Erank Sarver, William Kelly and W. P. Mulvihill, in that they have no visible means of support, and upon other grounds unnecessary to mention. These questions were all passed upon by the court whose province it was to do so, and as it does not appear that its finding was clearly against the evidence it should not be disturbed. Thus in State v. Williamson, 106 Mo. 162, it is held that the finding of the trial -court as to the qualifications of jurors will not be disturbed, unless it appears that manifest error had been committed, and such was not this case.
The point is made that the court erred* in giving the first instruction on the part of the State, in that it defines the word deliberation as meaning “in a cool state of the blood, not in a heat of passion, caused by some just or lawful cause of provocation to passion; and the court instructs you that under the evidence in this case, there is no evidence tending to show the existence of any such passion or provocation.” The argument- is that the instruction omits the essential element of deliberation, that is, that the homicide must have been committed in the furtherance of a formed design to gratify a feeling of revenge, or to.accomplish some other unlawful purpose. While the definition of the term deliberation is inaccurate and not in accord with the uniform rulings
Nor does it make any difference that the instruction may have been in conflict with the third instruction given on behalf of the State with respect to murder in the second degree, even if such be the case, for, as defendant was not convicted of ' murder in that degree we are unable to see how he could possibly have been prejudiced by the instruction.
We are also of the opinion that no such error was committed in the admission of evidence on the part of the State, as would justify a reversal.
The homicide was without justification or excuse, or even a mitigating circumstance. Defendant had a fair trial, and finding no error in the record that would justify us in reversing the judgment, it must stand affirmed, and the sentence oidered to be executed.
