228 Mo. 273 | Mo. | 1910
On the 14th day of September, 1908, the prosecuting attorney of Pemiscot county filed in the circuit court of said county an information charging the defendant with murder in the first degree. Thereafter, upon the defendant’s application, the regular judge of the circuit court was disqualified, and Honorable J. L. Port, judge of the Twenty-second Judicial Circuit, was selected to try the case. Thereafter the State waived the charge of murder in the first degree, and elected to try the defendant on the charge
The testimony on the part of the State tends to prove that at about 7:30 or 8 o ’clock on the evening of March 2, 1908, the deceased, Edward Langdon, in company with Clay Pillow, Elmer Sanders and Ed Mode, was in a saloon, known as the Opera saloon in the town of Caruthersville, Pemiscot county, Missouri, and that said Clay Pillow, who was intoxicated, was giving expression to an unfriendly feeling towards one Jerry McElvain, not then present. Soon thereafter McElvain, one Vaughn, and the defendant entered the saloon. McElvain stepped to the bar, borrowed two diollars from the bartender, and invited those present to join him in a drink. The defendant did not go to the bar, but stood near the wall, opposite from the bar, and behind the deceased. Some of the invited persons, including Clay Pillow, accepted McElvain’s invitation to drink with him, whereupon Sanders and the deceased, having observed the intoxicated condition of Pillow, a brother-in-law of the defendant, persuaded him to leave the saloon and start towards home. The deceased, Sanders and Pillow left the saloon, and when they reached the Depot saloon, which was owned by Sanders, Pillow stated that he wanted one more drink, and would go home after getting it, whereupon they entered the Depot saloon. They had been there about ten minutes when the defendant, McElvain and Vaughn entered the saloon together, and the testimony is that when these three left the Opera saloon McElvain exposed a pistol and carried it in his hand. Upon entering the Depot saloon, McElvain went to the bar and
After leaving the Depot saloon, Langdon went to Barnett’s saloon, a short distance away, opened a drawer in that saloon and! took therefrom a pistol belonging to the bartender, and which Langdon carried
On the part of the defendant, the testimony tends to prove that between 6:30 and 7:30 o ’clock, on the evening of March 2, 1908, the defendant, McElvain and Vanghn were at McElvain’s saloon, and while there defendant borrowed a large pistol of McElvain. Thereafter, McElvain, Vaughn and the defendant went to the Opera saloon'in search of defendant’s brother-in-law, Olay Pillow, who was intoxicated, the defendant having previously been requested by Pillow’s wife to take him home. Upon their arrival at said saloon they there found said Pillow, in company with Sanders, the deceased, and others. As to what occurred at the Opera saloon, the testimony is similar to that on the part of the State as above detailed. About five minutes after Pillow, Sanders andj the deceased left said saloon, the defendant, McElvain and Vaughn also left and went to the Depot saloon, to which place they went in search of Pillow. Upon arriving at the Depot saloon, where the tragedy occurred, they found Pillow, Sanders and the deceased. McElvain invited the crowd to drink at his expense. Relative to the first .difficulty between the defendant and the deceased, the testimony of the defendant’s witnesses is substantially the same as that of the State’s witnesses, and is to the effect that as the parties were about to drink, the defendant attacked the deceased, the latter asking him what he meant, to which the defendant replied that he (the deceased) had whipped his brother on a former occasion and had kicked him off the train; that the defendant called the deceased a vile name, and continued beating him until the deceased left the saloon. Defendant’s own testimony in regard to the first difficulty is not in harmony with that of other witnesses He testified that when he entered the saloon he told his brother-in-law, Pillow, that he must go home; that the deceased interposed, called him a “G — d d — n son-of-a-bitch, ”
The defendant testified that he left home for Caruthersville on the afternoon of March 2, 1908, taking with him a small “Owl Head” pistol, which belonged to a negro who had theretofore worked for him, his purpose being to give it to the negro in case he should see him in Caruthersville. About 6 o ’clock that evening his sister, the wife of Clay Pillow, telephoned to him to take Pillow home. He found Pillow, who refused to go home with him, and then he went to Mc-Elvain ’s saloon and requested McElvain to help bim to get his brother-in-law to go home. Both McElvain and Vaughn accompanied him to the Opera saloon, where they located Pillow. Before leaving McElvain’s saloon he borrowed a big pistol from McElvain. The reason he did this was that he had had a difficulty with one Dave Huffman a few days previously, and that he
With reference to the shooting, the defendant testified that when the deceased entered the cigar department he heard him say “Oh, Albert,” and that when he went through the screen dnor, in response to the call, the deceased greeted him with a curse and presented his pistol; that he (defendant) jumped and took hold of Langdon’s arm, and then, pulling out his own pistol, he struck Langdon therewith on the head; that Langd'on fired two shots, one of which wounded him (defendant) in the neck, and that he, then, fired at the deceased, but that his pistol failed to go off after the first shot although he snapped it several times; that he fell and dropped his big pistol, whereupon he drew the little pistol which he had on his person, and which belonged to a negro, and fired it, the bullet striking the deceased in the jaw; that deceased also shot him while down, the ball entering his leg.
Some evidence was offered tending to prove that the deceased bore the reputation of being a dangerous' and turbulent man, while other testimony tended to prove that defendant’s reputation for morality was bad.
OPINION.
I.
Defendant challenges the sufficiency of the information, the contention .being that it fails to charge with what the assault was made, or that the mortal wound was feloniously given.
Omitting the formal parts, the information is as follows:
“B. A. McKay, prosecuting attorney, duly elected, commissioned, sworn, qualified, installed, and acting as such within and for the county of Pemiscot, in the
The information is not subject to the criticism lodged against it, but contains every necessary averment, and follows approved precedents. [State v. Heath, 221 Mo. 565; State v. Barrington, 198 Mo. l. c. 36; State v. Privitt, 175 Mo. 207; State v. Kindred, 148 Mo. 270.] The cases cited by defendant deal with a different form of information, and afford no basis for the attack made upon this.
II.
The record discloses that the defendant filed a plea in abatement of the information, alleging that the grand jury of Pemiscot county, prior to the filing of the information, returned into1 court an indictment charging the defendant with murder in the second degree for the killing of Ed Langdon, the same person mentioned in the information, in the same way, by the same means, and at the same time and place as alleged in the information, and that said indictment was still pending and undetermined.
Defendant claims that by reason of the statute (R. S. 1899, sec. 2476), which provides that “that mode of procedure which shall be first instituted by the filing of the indictment or information for any offense shall be pursued! to the exclusion of the other, so long as the same shall be pending and undetermined,” the prosecuting attorney had no legal authority to file this information, and that the court erred in overruling said plea. This plea, as the record shows, was filed and overruled during the November term, 1908, of the circuit court, and while the cause was pending before the regular judge, Hon. Henry C. Riley. Thereafter, upon defendant’s application,- the cause was continued until the next regular term, when Hon. J. L. Port, judge of the Twenty-second Judicial
Again, the plea and the exception of the defendant to the court’s action in overruling same are found only in the record proper. The only way known to the law for preserving matters of exception is by a bill for that purpose. [State v. Hicks, 160 Mo. 468; State v. Wilhoit, 142 Mo. 619; State v. Reed, 154 Mo. 122; State v. Finley, 193 Mo. 202; State v. Penland, 199 Mo. 152.]
III.
Numerous errors are assigned relative to the instructions given and refused by . the court. The first instruction complained of reads:
“A. The court instructs the jury that if you find and believe from the evidence that the defendant, Albert Little, had shortly before the difficulty, assaulted the deceased, Ed Langdon, then and in that event the deceased was not bound to flee from defendant, but had a right to arm himself, with the honest purpose of protecting his own life, or to1 defend himself against a further attack by defendant.”
The defendant’s objection, that the latter part of the instruction submits to the jury a matter not in issue in the case, appears to us to be well founded. There is no evidence tending to show that the deceased armed himself with the honest purpose of protecting his life, or to defend himself against a further
Instruction “B,” given for the State, is objected to on the ground that it is unwarranted by the evidence. It is as follows:
“B.- If the jury shall find from the evidence that the State has proven a conspiracy between the defendant, Jerry McElvain and Elmer Vaughn, or with any of them acting with defendant, to whip' the deceased1, or take his life, or do him some great bodily harm, and that defendant and said Jerry McElvain and Elmer Vaughn, or any of them acting with defendant, killed said deceased in carrying out such design and purpose, then, in considering the guilt or innocence of defendant, you may take into consideration every act and declaration of each member of the confederacy in pursuance of the original concerted plan, and with reference to the common object, which has been given in evidence before you.”
The case was tried on the theory that a conspiracy existed between the defendant, Jerry McElvain and Elmer Vaughn .to whip or do some great bodily harm to the deceased, and as supporting this theory certain evidence was permitted to be introduced,' which evidence, while far from sufficient, as we think, to prove the existence of such conspiracy, was nevertheless calculated to prejudice the jury against the defendant.
One witness for the State testified that at the time of the first difficulty McElvain drew his pistol and held it at his side, but in no way attempted to use it. This witness further stated that Pillow, who had been cursing McElvain at the Opera saloon before the latter came in, drew his pistol at the same time, and, addressing McElvain, said, ‘ ‘ I think you are handy with your gun.” Before giving this testimony, the witness said, “We had been expecting trouble between Pillow and McElvain. ’ ’ McElvain denied that he drew his pistol,
G-eorge Holly, proprietor of the Opera saloon, testified for the State to the effect that when Mc-Elvain, Vaughn and the defendant came into his saloon they had their hands in their pockets, but that neither of them made any demonstration against the deceased who was present; that while in his saloon, McElvain told him (Holly), out of the hearing of defendant, that “Albert Little had it in for Ed. Langdon” on account of some old score; that at the time McElvain, Vaughn and the defendant left the Opera saloon, Mc-Elvain was carrying a pistol in his hand.
This is the only testimony which has any tendency whatever to show the existence of a conspiracy to injure the deceased, and we do not think this was sufficient to warrant the submission of the question to the jury. The evidence is clear that the defendant, both in the first and second difficulty with the deceased, acted wholly independently of his supposed co-conspirators, and it is not shown that a single word, sign or token passed between them, before or after either of said difficulties, to indicate that they were acting in concért for the accomplishment of a common and1 unlawful design. Indeed the record is barren of evidence tending to show that either the defendant, Mc-Elvain or Vaughn knew, prior to the time of seeing him at the Opera saloon, that the deceased was in Caruthersville that day. Nor is it at all likely that McElvain, if he had conspired with defendant to do
The testimony of Elmer Yaughn, a witness for the defendant, and one of the supposed conspirators, was more damaging than favorable to the defendant. His testimony is clear, plain, direct and unequivocal — very different from that which might be expected1 from a man implicated in a conspiracy to commit the crime in relation to which he was testifying. None of the testimony alluded to points to a conspiracy, and instead of giving the instruction complained of, the court should have given an instruction like that asked by the defendant, which reads: “The court instructs the jury that there is no evidence in this case to establish a conspiracy between the defendant and Jerry Mc-Elvain, or any one else, concerning the deceased, Ed. Langdon; you are therefore instruted, in arriving at your verdict, not to take into consideration any of the testimony offered in evidence of what was said or done by Jerry McElvain or any other person, not said or done in the presence or hearing, or with the knowledge and understanding of the defendant, Albert ■Little.”
The statement made by McElvain to witness Holly, that “Little had it in for Langdon,” was bound to be prejudicial to the defendant, and as it was not made in the presence and hearing of the defendant, its admission, over the objection of the defendant, was error. Such statement was made at the Opera saloon,
In State v. Newcomb, 220 Mo. 54, it is said: “The law is so well settled that the defendant cannot be bound by statements and acts of third parties made out of his presence, that it needs no citation to establish it, but our own Reports abound in decisions condemning the admission of such testimony.” As well said in State v. Jaeger, 66 Mo. l. c. 180: “If the minds of the jury at this juncture were still tremulous with indecision between the innocence and the guilt of the prisoner, the reception of such testimony 'was sufficient to turn the scale against him.”
The correctness of instruction “C” is challenged, the defendant claiming that it is not authorized by the evidence. It reads: “The- court instructs the jury that if they believe from the evidence that defendant had made up his mind to whip Ed. Langd'on, and that he borrowed a revolver from Jerry McElvain for the purpose and with the intention of hilling said Langdon, if in the judgment of the defendant it should become necessary for him to hill said Langdon in order to accomplish said] design of whipping him, and in pursuance to said purpose and intention, defendant provohed and entered into a difficulty with said Langdon and) assaulted him, then and in that event there is no self-defense in this case, and this is true regardless of the danger to which the life or limb of the defendant may have been exposed from said Langdon at the time defendant hilled him, if the jury shall find from the evidence that the defendant did hill him.”
This instruction is faulty in construction, the expression, “if in the judgment of the defendant it should become necessary for him to hill said Langdon in order to accomplish said design of whipping him,”
The correctness of the following instruction is also challenged:
“IX The court instructs the jury that' if they believe from the evidence that defendant had made up his mind to whip Ed Langdon, and that he borrowed a revolver from Jerry McElvain for the purpose and with the intention of killing said Langdon, if in the judgment of the defendant it should become necessary to kill said Langdon in order to carry out his design of whipping him, and in pursuance of said purpose and intention defendant provoked a difficulty with said Langdon and assaulted him [and that said Langdon, ■while still smarting under a violent passion aroused by said assault, if the jury shall find from the evidence that said assault did arouse a violent passion in the mind of said Langdon, and because of said passion he, the said Langdon, went away and procured a revolver, and returned to the place at which he was killed by the defendant, if the jury shall find by the evidence he was killed by the defendant, and that a reasonable time had not elapsed from the time of said assault to the time of said killing for said passion to subside, and that it had not in fact subsided, and that said Langdon, while still smarting under said passion, and under the influence of said passion, attempted to shoot, or did shoot, the defendant, andl defendant shot and killed said Langdon in order to save his own life],, then and in that event there is no self-defense in this case, and this is true regardless of the danger to which the life or limb of the defendant may have been exposed at the hands of said Langdon at the time defendant did kill him. ’ ’
It will be noticed that this instruction, save as to the matter which we have placed within brackets, is the same as instruction “C,” except that this recognizes that some time elapsed between the first diffl
The same unauthorized and erroneous doctrine is injected into instruction E, on manslaughter, which reads:
“E. If the jury believe from the evidence that defendant assaulted the deceased, because the deceased
By this instruction the court in effect tells the jury that defendant’s- right of self-defense is cut off, and he is guilty of manslaughter in the fourth degree, if the defendant assaulted the deceased with the intention only of assaulting or whipping him, and this although such assault might have been provoked by the latter’s calling the defendant a son-of-a-bitch, provided such assault aroused a violent passion in the mind of the deceased and that the same had not subsided at the time he returned and shot or attempted to shoot the defendant.
Premising that the questions of passion and cooling time, as raised, have rightfully no place in the in
It is said for the State that the defendant cannot complain of any alleged error in an instruction relating, to fourth-degree manslaughter, since he was tried and convicted on the charge of second-degree murder; [citing State v. Dunn, 80 Mo. 681; State v. Talbott, 73 Mo l. c. 358; State v. Jackson, 167 Mo. l. c. 297.] We do not think those cases in point. The evidence in this case warranted,, we think, an instruction on fourth-degree manslaughter, and the trial court' evidently thought so. Having, at the instance of the State, given such instruction, it was required to be correct. [State v. Barton, 214 Mo. l. c. 323.] The court did give another instruction on the same offense, which is not objectionable, nor objected to, but that did not cure the error of the instruction quoted.
At the instance of the defendant the court gave five instructions, one of which was the ordinary and frequently-approved instruction on self-defense, but which- was qualified by the court by adding thereto these words: “But if the jury shall believe and find
For reasons hereinbefore given, this qualification of the instruction by the court was error. It is but a repetition of the idea that the violent passion of the deceased (if such existed, and was provoked by the assault made on him by defendant, and had not subsided at the time deceased shot or attempted to shoot defendant) operated to deprive defendant of his right of self-defense.
Whereas the evidence in this case shows that the two difficulties between defendant and deceased were separate and distinct, the court treated the two as one continuous combat, the passion of the deceased, if such existed, being the agency whereby the union or combination of the two'difficulties was effectuated. To this mistake the errors pointed out in instructions C, D and E, and in the amendment to the instruction on self-defense, are mainly traceable.
•A case peculiarly in point is that of Brazzil v. State, 28 Tex. App. 584. In that case the defendant, on first meeting the deceased, was the aggressor, striking him on the head with his pistol. But, having disarmed the deceased, and pursued him a short distance, the defendant abandoned the pursuit, saying that he
The law as stated by the court in the Texas case is eminently applicable to the facts of this case. In the Texas case it is not shown that the deceased was armed when he engaged' in the second difficulty, while it is clear from the evidence in this case that the deceased was armed when he engaged in the final combat; and the evidence would indicate that he did not arm himself for the purpose of defense but attack.
Upon the facts developed in this case the defendant requested the trial court to give the following instruction numbered 11.
“11. The court further instruct you that even though you should believe from the evidence that the defendant, Albert Little, was the aggressor and brought on or assaulted the deceased, Ed. Langdon. in the first difficulty testified to as happening in the Depot saloon, and that in said difficulty the defendant acted without just cause or provocation; yet if you further find and believe that defendant and deceased voluntarily abandoned said difficulty, and that deceased, Ed. Langdon, left said saloon and went out and armed himself with a dangerous and deadly weapon, to-wit, a pistol, and came back to said saloon where defendant was, for the purpose to and did renew the difficulty with the defendant, then the court charges you that the first difficulty gave the deceased no right or legal excuse to renew the difficulty, and did not deprive the defendant of any of his rights of self-defense in this last attack, and if you find Langdon did attack him, the defendant had the same rights to defend himself, or the right of self-defense as defined in the other instructions, which he would have had, had no prior difficulty occurred between said defendant and dieceased.”
Other minor errors are called to our attention, and which will doubtless be corrected upon a retrial of the case.
For. the errors noted the judgment is reversed and the cause remanded for retrial.