249 Mo. 80 | Mo. | 1913
Lead Opinion
Defendant stands convicted of stabbing and killing one Milton Akins Mackey in Pettis county on November 20, 1911, and from a judgment of the circuit court of that county fixing his punishment at death he appeals.
A very fair outline of the case made by the State will be obtained by quoting the salient parts of the evidence of witness Charles L. Hollingsworth, who /■testified as follows:
“A. They was at the Katy depot, and we was all standing there talking, and Mr. Jones came up, and he didn’t speak to Mr. Mackey, but he was looking right at Mr. Mackey, and asked Mr. Mackey: ‘Who hauled this man, Vinson, the day before?,’ And Mr, Mackey replied, he said he didn’t know. Mr. Mackey .wanted to know then why he wanted to know. ‘Why,’ he says, ‘he dr awed a gun on a boy at the shops and they swore out a warrant for him,’ and he wanted to know how they got along with him.' Mr. Mackey asked Mr. Jones: ‘What made him draw this gun?’ Mr. Jones wouldn’t tell him; says: ‘We ain’t putting out a thing’ he says, ‘specially to you fellows’ — you hack drivers or something like that. That’s the words he said, and then Mr. Mackey’s team got scared and*90 started to run, and Mr. Mackey run after the team and Mr. Jones run in and stabbed him.
“Q. How far did Mr. Mackey have to run to get to his team from where he was standing? A. About twelve or thirteen feet.
“Q. When he was running to get his team was he running towards or away from the defendant, Jones? A. He was running away from him.
“Q. And just state what Mr. Mackey did when he reached where his team was? A. He grabbed the lines. •
“Q. Now, how were the lines fixed, Charley, so the jury will understand? A. They was wrapped around the hub of the wheel, and Mr. Mackey run up to grab the lines, and put his left hand on top of the wheel and his right hand ahold of the lines.”
Hollingsworth further testified that Jones looked •like he was mad and held his right hand in his front pants pocket when he first came down where the hacks were standing. That immediately after the stabbing took place, Jones’s hat was on the ground, but witness did not know how it came to be there. Hollings-worth further testified that after Mackey was stabbed and fell he (Hollingsworth) and others started towards Mackey’s body, whereupon Jones slashed at them with his knife.
The evidence of witness Hollingsworth was strongly corroborated by five other witnesses for the State. These witnesses were standing from ten to fifteen feet from Mackey and Jones, but did not hear, any quarrel, nor see any hostile demonstration on the part of Mackey whatever. One witness for the defendant who was present at the tragedy testified that while Mackey struck defendant before the stabbing took place the defendant was not knocked down. *
Defendant’s account of the killing is as follows:
“Q. What conversation occurred there in the presence of Mr. Mackey, Mr. Jones?
*91 “The Court: That conversation has been gone into.
“A. Well, I asked the question:• If any of them knew whether- or not Sheriff Henderson had got back to town with Mr. Vinson. And this man, Mr. Mackey, says: ‘I don’t know. Why?’ ‘Well,’ I says, ‘I heard this morning there had been a warrant sworn out for him and the sheriff had went after him.’ And Mackey says: ‘What in the hell do you know about it?’ I says: ‘I don’t know anything about it.’ I wasn’t supposed to know because I wasn’t there. ‘Well,’ he says, ‘what was the warrant sworn out for?’ I says: ‘I understand Mr. Vinson made a gun-play out at the Katy shops yesterday at noon.’ And Mr. Mackey says: ‘Are yon a carman?’ I says: ‘Yes, sir.’ He says: ‘Where is your card?’ Isays: ‘I have none.’ I says: ‘I have nothing but my receipts to show I have paid my dues.’ Red Baldwin says: ‘He is a carman all right.’ And Mr. Mackey was standing on the foot step of the Terry van when I was talking to him, and he stepped off onto the sidewalk.
“Q. In which direction? A. Why, he stepped off south from where he was standing, and stopped southeast of me. I was standing near the edge of the curbing. And he says: ‘You may have to know something about it.’ ‘Well,’ I says, ‘I ain’t putting out anything to-day.’ I told him: ‘That’s all right,’ and I made a step or two backwards, and went to turn. Mr. Mackey says: ‘You son-of-a-biteh,’ and he hit me right behind the ear (indicating), and knocked me off the curb into the street.
“Q. Now, then, what happened, Mr. Jones? A. He followed me up and hit me right along back there (indicating) and knocked me to my knees, and as I straightened up, I turned facing the south, and Mr. Mackey hit me one lick right over my heart, and knocked me down (indicating), and I went flat and he made a rush towards the front wheel of the second*92 rig from the east. It was a carriage. And lie readied down below the liub of the wheel towards a brick-bat that was laying there, and I thought my life was in danger — ■
“Mr. Steele (interrupting): We object to that, and ask that it be stricken out.
“The Court: Objection sustained. Strike out what he thought.
“To which action and ruling of the court in sustaining said objection and in granting said motion to strike out, the defendant then and there duly excepted at the time and still excepts.
“Q. Then what occurred? A. When I got on my knees, I took my knife out of my right-hand pants pocket, and opened it while I was on my knees, and grabbed Mr. Mackey by the overcoat and pulled myself up, and he straightened up. Pie saw the knife and throwed his right hand down in his overcoat pocket, and I struck him with the knife. (Indicating all the time.)
“Q. Iiow many times did you strike him with the knife? A. I don’t know.”
Defendant was corroborated by one witness and partially corroborated by two' others. One witness called by the State, who was standing about sixty feet from the parties, testified that immediately before the stabbing he heard Mackey say to defendant: “You are a damn liar, yon will do nothing.”
Mackey was killed with a pocketknife, the blade of which was about three inches long.
As we find the judgment must be reversed for errors hereafter noted, it is unnecessary to give a more detailed statement of the evidence. It is sufficient to say that the testimony on the part of the State, if true, is sufficient to sustain the verdict of the jury imposing the death penalty upon defendant; while the evidence on the part of defendant, if true, would have justified the jury in finding a verdict of murder in
OPINION.
Defendant objected to the testimony relating to the attempted mobbing of Vinson on the ground that it tended to prejudice the minds of the jury by placing before them evidence of another crime with which defendant was not connected. The prosecution promised to connect defendant with the mobbing of Vinson, whereupon the court admitted the evidence. •
Jack Savage, one of the witnesses for. the State, testified that he saw defendant standing on the steps of a near-by grocery store when he and the sheriff arrived at Vinson’s house, but there was no evidence that defendant took any part in the attempted assault on Vinson. "We find that the evidence of this attempted mobbing of Vinson was improper and its ad
Even if it had been shown that defendant took part in the attempted mobbing of Vinson, that would not tend to show malice on the part of the defendant towards Mackey who was engaged in a different occupation than Vinson and was apparently not connected with the strike. The case of State v. Bailey, 190 Mo. l. c. 279, cited by the Attorney-General, is not in point becau'se it was not proved that the parties who tried to mob Vinson were acting in concert with defendant. There is nothing in the record tending to prove that any other striker had'agreed or undertaken to co-operate with defendant in assaulting Mackey or other hackmen..
Strikes do frequently result in rioting and murder, but we cannot, as a matter of judicial knowledge, say that all persons who go on a strike are desirous. of committing murder.
The fact that the special prosecutor for the State promised the trial court to connect Jones with the' attempted mobbing of Vinson, but did not do so, con-' vinces us that the evidence of this rioting was introduced for the sole purpose of inflaming the minds of the jury against defendant. This was highly improper.
The human mind is so constituted that when it becomes prejudiced against an individual it cannot impartially weigh evidence tending to show his guilt or innocence — prejudice and malice dethrone reason, and overcome the natural impulse of both juries and courts to weigh evidence and decide disputed facts correctly and impartially.
Upon a retrial of the case the State should be permitted to show that a strike had been declared by the employees of the car shops; that defendant was one
The following cases may profitably be consulted regarding the admissibility of evidence to prove motive: State v. Page, 212 Mo. 224; State v. Callaway, 154 Mo. 91; State v. Duestrow, 137 Mo. 44.
Motive is a very vital matter in cases where the identity of the party who committed the crime is in doubt, and also where defendant claims that his unlawful act was the result of an 'accident, but it is not so important when, as in this case, the defendant admits that he did the killing and relies upon the plea of self-defense. .
Defendant had, by his plea of not guilty, and by his evidence, tendered the issue of self-defense. The learned trial judge submitted that issue to the jury in the first paragraph of instruction numbered 13, which reads as follows:
“The right to defend one’s self against danger not of his own seeking is a right which the law not only concedes but guarantees to all men. The defendant may, therefore, have killed deceased and still be innocent of any offense against the,law. If at the time*96 he stabbed deceased he had reasonable canse to apprehend on the part of deceased a design to do him some great personal injury, and there was reasonable cause for him to apprehend immediate danger of such design being accomplished, and to avert such apprehended danger he stabbed, and at the time he did so he had reasonable cause to believe, and did believe, it necessary to use his knife in the way he did, to protect himself from such apprehended danger, then and in that case the stabbing was not felonious, but was justifiable, and you ought to acquit him upon the ground of necessary self-defense. It is not necessary to this defense that the danger should have been actual or real, or that danger should have been impending and immediately about to fall. All that is necessary is that defendant had reasonable cause to believe and did believe these facts. But before you acquit on the ground of self-defense, you ought to believe that defendant’s cause of ’apprehension was reasonable. "Whether the facts constituting such reasonable cause have been established by the evidence you are to determine, and unless the facts constituting such reasonable cause have been established by the evidence in the cause, you cannot acquit in such case on the ground of self-defense, even though you may believe the defendant thought he was in danger.”
In view of the foregoing instruction we hold that it was error to strike out that part of defendant’s evidence tending to show the condition of his mind and his belief of impending danger from deceased at the time he did the stabbing. Such was the ruling of Division No. Two of this court in the recent case of State v. Turner, 246 Mo. 598, l. c. 616, 617.
In the mind of the writer it is only a matter of common sense to hold that when under the law as declared by the court a defendant is required to convince the jury that his mind was in a certain condition at the time he assaulted or killed-another person, in order
It may be said that the evidence of defendant under such circumstances would amount to only a self-serving statement. Be that as it may; the defendant is the man most likely to know the condition of his own mind, and the jury is under no obligation to believe him unless upon his cross-examination and upon a consideration of all the facts in the case his evidence as to his apprehension of danger is so reasonable and consistent that the jury is convinced he has testified truthfully.
Whether error of this character is sufficient to work a reversal of a judgment must depend somewhat upon the other facts in the case in which it is committed.
The trial of defendant was concluded on the 17th day of January, 1912, and one of the special prosecut
Another point of objection to the remarks of the special prosecutor is that they amounted to an appeal to the jury to convict defendant of murder because he had previously been convicted of horse-stealing. This insistence is not without merit. The trial court had instructed the jury that defendant’s conviction of horse-stealing was not evidence that he had murdered Mackey; consequently, the above quoted argument was directly in face of the law" as correctly declared by the court. It is never proper for attorneys to directly or indirectly invite juries to disregard or disobey the written instructions of the. court.
' The laws of the State of Texas, like our own, provide that evidence of the former conviction of a de
“ ‘Tbe only punishment you can give tbis negro bully is’ to end bis earthly career. If you send him to tbe penitentiary, it will not reform him. He has been in tbe penitentiary for assault to murder, and it has bad no effect on him. And be goes out tbe first thing and gets a big six-shooter, and goes to killing. He has been tried in tbe penitentiary, and that does no good, and you must not give him another chance in tbe penitentiary, for, if you do, be will watch bis opportunity to kill tbe guards and escape.”
In reversing tbe judgment in that case tbe Supreme Court of Texas said:
“Tbe language of tbe county attorney in bis argument to tbe jury was highly inflammatory and prejudicial to tbe rights of appellant, and tbe court should not only have reprimanded tbe counsel, but should have charged tbe jury to totally disregard such argument. . . . Tbe fact of appellant having previously been in tbe penitentiary was admitted by tbe court for tbe sole purpose of testing tbe credibility of tbe appellant as a witness in bis own behalf. It was legitimately admissible for tbis purpose, and could not legitimately be used for any other purpose.”
To tbe same effect is tbe ruling of Division No. Two of tbis court in tbe recent case of State v. Phillips, 233 Mo. l. c. 306.
Upon a retrial of tbe case tbe prosecuting attorney should be permitted, in commenting specifically upon tbe evidence of defendant, to refer to tbe fact that be has been convicted of horse-stealing, as tending to discredit bis evidence as a witness in bis own behalf, but he should not be allowed to urge bis prior conviction as evidence that be committed tbe crime with which be is now charged.
This case does not fall within the purview of section 4913, Revised Statutes 1909, under which a former conviction may be charged in the indictment and proved to increase the punishment. [State v. Austin, 113 Mo. 538.]
The defendant complains of other alleged errors, but, if errors, they are of such a nature that they are not likely to reoccur upon a second trial of the cause. Therefore, we will not incumber this opinion with them.
The real object in creating and maintaining courts is to accord litigants fair trials. The greater the punishment sought to be inflicted upon'a defendant, the greater the necessity that his trial should be in accordance with the forms prescribed by law. As the defendant was not given a fair trial we will reverse the judgment and remand the cause for a new trial in accordance with the views herein expressed. It is so ordered.
Concurrence Opinion
CONCURRING OPINION.
I fully concur in the result reached in the principal opinion, and in most of the opinion. There are, however, some things in which I do not concur. In the last sentence of paragraph two of the
As to the third paragraph of the opinion I only wish to say that in my view of the law the language used by, and the conduct of, the special prosecutor in this ease, are of themselves sufficient to work a reversal of this judgment. It strikes me that my brother does not go quite so far, but it may be that he does. At any rate this will make my position clear. With these exceptions I concur fully in the opinion and fully concur in the result thereof.