*1 (2d)W. Logan, Appellant. 256. v. Anderson The State Two, Division March 1939.
Boy McEittrick, Attorney General, Burke, and W. J. At- Assistant torney General, for respondent. BOHLING, Logan C. Anderson was convicted of the degree Angela murder of Logan, his wife. This is his appeal. second The record,
facts of the instant as did the facts the former appeal (see (2d) 110), sufficiently S. W. established appellant’s guilt. They will be further developed in the consideration presented. the issues The punishment imprison- was fixed life ment. Appellant has not filed a brief. negro. ais After the jury members of the panel
had been for examined State had peremptory made its quash panel challenges, appellant a motion to of the remain- filed twenty-four jurors. assigns ing motion for new trial His error rights overruling ground Four- of said motion on the under the teenth Amendment to the had been Constitution United States violated; particularly more in that he “did have a chance to have any jury try men” negroes twelve be selected case. assigned for in law. The legal reason error is insufficient issue against involved is one discrimination and not one of a chance to negroes jury. Upon have on the the first re- appeal cause was service; negroes for manded because discrimination but J., issue, (341 speaking 1172(3), to the instant Mo. l.c. Ellison, (2d) 114(4) ) l. c. “It is not the that the appellant : law absolutely negroes him, entitled have that tried even panel may from which that was drawn. It happen that no negroes (or particular citizens) members of other of our class regular given court, panel will be on the term special for a or on the *3 particular venire a good for ease. If that occur in due course and negro faith of the ratio of to population, because white or of because disqualifications, pure like, actual or law; chance the it is within the by deprived but if the be design having defendant of the chance of try him, negroes may. which is to the Federal Constitution negroes The fact invoked. that no were drawn in particular the against .State; negroes ease is not conclusive the fact and that might against not been in due have drawn course not is conclusive ’’ the defendant. thirty forty-one panel
The was from of of selected talesmen. Six forty-one negroes; which disqualified were of number four for Appellant’s complaint against by cause. real the exercise the State statutory peremptory challenges striking its six in of the names two negroes thereby from the and depriving appellant list of an opportunity negroes jury. to have the trial contains record showing no discrimination.
Appellant’s challenge motion in a array. was effect to the 109, These timely Taylor, should be filed. (i), v. 134 Mo. 143 [State (i) ; Powers, 99 consult State v. 136 Mo. 37 and S. W. 936.] A not be permitted, participating defendant should after voir dire of the panel, examination to take the chance that the State’s right peremptory challenge exercise of its favorably will result to then, defendant if disappointed,, present objections which array. have their foundation in the Appellant challenged jurors also two for cause on the sole ground they they one stated had at time been members of the Ku Klux ruling Griffith, Klan. We follow the State v. (1, 2), holding 137 there no error overruling was challenges case, for cause. The record in case, this as in that also
affirmatively grounds legal discloses no sustaining challenge for a for
354 Lowry, jurors. 321 respect with to said Consult also State v. (2d) 469, 471(2) ; Gartland, 878(I), 12 W. State v. 304
Mo. 165, 168(2). 98(II), 263 S. W. Mo. admissibility dying
Appellant questions next decla- by wife, stating police it obtained a officer for the ration of his was voluntary being against him not a statement purpose of used and was appellant that her part. on her The statement was to the effect shot shotgun. dying with a The fact that a declaration was obtained to an officer does not render it inadmissible. One of the made primary securing have it purposes such statement is to available legal are for its exclu- for use an offender. These reasons affirmatively that the sion. The instant record establishes statement voluntary. fact, “I In her statement reads: make this statement ’ mortally knowing ’; I am and there was other wounded testi- mony was.going die; knew that wanted to make a she she she statement thereafter the officer took the statement. living arrangements
wife not been him and had made had with institute an action for divorce. return desired she home; Columbia; he accosted on the streets of to talk wanted her and, refused, shotgun with her after she shot her with a while she him, inflicting large gunshot was within few feet of wound p. upper abdomen. This occurred at two m. When she examined shortly hospital physician dying at the thereafter the found her in a p. condition. She died about seven m. The statement was admissible. Custer, 514, 517(1), (2d) 170, 177(1-3) ; S. W. Davis, 411, 414(I), (2d) 930, Mo. 931(1-3); State v. Strawther, (2d) 133, 3).] 136(2, Mo. Fisher, State, Maria mother of deceased and a for witness second, during interval between the first and died trials. Appel *4 trial, lant’s counsel did not cross-examine Mrs. Fisher at the and, first setting cross-examine, up assigns said failure to he now error in the testimony, transcript citing admission of the of her Section 22 of 2, Const., Ann., p. 346, Article Mo. 15 Mo. providing Stat. right . . the accused shall have the ... to meet the wit- ” against him right face to face . . . nesses thus accorded an privilege may personal accused is a which he waive. Wagner, v. Practically 644, jurisdictions Mo. all testimony 78 admit given 648.] proper showing at a former trial a covering the absence of the witness, appear substantially and the cases in accord that the fo requirements constitutional is fulfilled if the accused present, by might the witness and confronted have had counsel or have cross- if he so desired. States, examined United (2d) 5 Fed. [Baldwin denied, 552, (certiorari 269 L. 133, 407, 134 U. 70 Ed. Sup. Ct. Annotations, 1395(b), 79 A. L. 17); R. 15 A. L. R. 514(b), 25 L. R. A. Jur., S.) 871; p. 895, 14 Am. (N. 188; secs. 8 R. L., p. 216, C. 212; J., p. Although sec. C. we fail sec. to find the 2116.] jurisdiction, general our ruled this statement of the precise issue Pierson, instant issue. State v. 337 Mo. 485(a), rule covers the (stating: early (see (2d) 53(5) day “From an State v. 402), held McO’Blenis, right we have that the constitutional not denied where a of confrontation is witness is dead at the time of witness, given testimony duly preserved trial and the of such and ease, hearing a in the same at which the present former defendant was right cross-examine, jury”); and was accorded is read to the Barnes, 268(2); State v. Lloyd, (2d) 418, 420(3). against
Appellant makes two attacks the State’s Instruction degree. 1, submitting murder in the instruction, No. Said insofar issues, ruling to a as deemed essential reads: “ degree’ wrongful ‘Murder in the first is the felonious and killing being wilfully, deliberately, premeditatedly of a human and and with ‘Wilfully’ aforethought malice . . . . . . means intentional- ‘Deliberately’ ly, accidentally. . . . an means intent to kill in a executed ... cool state of the blood a furtherance of gratify design feeling revenge, formed a or to accomplish some unlawful . . purpose other . “ ‘Premeditatedly’ thought means of beforehand . . . ‘Malice’ . . . means that condition of the mind prompts person which a intentionally cause, take the life of another just justifica- without excuse, signifies and disposition tion or state of shows heart fatally aforethought’ . . . bent on mischief. ‘Malice means malice ‘Feloniously’ premeditation. wickedly with means admonition of the law.
“Bearing definitions, in mind these Court instructs the you find and . . Logan that if believe . that Anderson . . . day January, 1935, just on the third without cause or provocation, feloniously, wilfully, deliberately, premeditatedly did and of mal- aforethought shotgun, ice with a certain loaded shotgun and that said dangerous deadly weapon, Angela Logan, was a shoot then and thereby inflicting upon her, Angela there and Logan, said wound, any, Angela if and the Logan mortal said day on the third you January, 1935, . . died then will find the defendant degree. guilty of murder the first .” says require did not instruction to find that from the wound inflicted appellant. died The complaint deceased italicized, the omission of words attacks words of like import, following clause: “. . and that in the wound, mortal from Angela Logan any, day the said third January, 1935, died if *5 required finding The instruction appellant . . .” that inflicted wife and wound” that she day. “a mortal died the same degree killing murder the first as “the defined of a It also human manner. The a definite words “mortal” and “murder” beinfi'” Mortal means “mors” —death. “destruc- from the Latin derived are occasioning deserving death; exposing to or life; causing or tive to ” fatal; as, death; deadly; a mortal wound . . . death, spiritual esp. -Dictionary, in- International 2nd While the New Ed.] [Webster's criticism, subject jury returned a should not have struction they appellant found that inflicted guilty thereunder unless verdict causing life and deadly wound, a wound destructive to fatal wife, January death, on 3rd and that his wife occasioning upon his they January 3rd, appellant also found that and unless on died Baker, Kan. “killed” his wife. [Consult ruling need not rest within such narrow 222(1).] But our Pac. submitting degree murder in second The instruction compass. submitting words. The instruction included the italicized expressly finding appellant that “intention- manslaughter expressly required a the definition of murder In addition to ally and killed” his wife. shot jury, 1, Instruction No. told the degree in Instruction No. first in the jury the evidence that “If, therefore, the believe from part, that Logan by shooting her in a Angela the life of took the defendant deadly weapon, and with . . . dangerous and with a part vital killing degree in the . .” is murder . cetera], then such [et attempt to show or contention that deceased died made no the wound he inflicted. He made the affirm- other than from causes accidentally discharged. gun The trial that ative defense theory throughout shotgun that his died of the wife proceeded any intervening an intimation of The record is devoid of wound. submitting instruction his de- death. efficient (reading: you accident “. . '. if . . of misadventure or . fense Angela that occasioned the death of . that wound find .”) of misadventure assumed that Logan the result hold, upon occasioned the death of his wife. We “mortal wound” record, error was not committed. reversible the instant says embody does Appellant also the instruction his defense the result of misadventure or accident. the homicide was that request, an gave, appellant’s jury instruction which told the court they they hypothesized if found certain facts therein should ac theory of homicide quit appellant “on the misadventure or acci appellant If inflicted “the wound that occasioned dent.” the death feloniously, wilfully, deliberately, Angela Logan” premeditatedly aforethought malice as the found within the and of definitions of act, necessity, supra, the was not the terms result of “mis adventure or accident.” error in the refusal of
Appellant asserts his instruction on portion informing thereof motive, especially that if the part appellant motive on the failed to show to commit evidence offense, ought is a circumstance which the “then this to con making up with all the evidence in the case their in connection sider *6 appellant .” evidence established shot.his verdict The State]s him; at her because she refused to live with and was incensed wife thought he divorce; to and because steps because she had taken secure intermeddling in -their affairs. others were shooting accidental within defense was that the (Mo. Ann., meaning of Revised Statutes 1929 Stat.
the Section 2792), reading: be deemed excusable when com- p. “Homicide shall misfortune, by following in mitted accident or either of the cases: by means, First, doing other lawful act lawful with ... ordinary caution, usual and and without unlawful intent .” Farrel, 319, 327, (2d) 857, 860(8), defines killing “a “accident” and “misfortune” as without to kill.” intention (1904), Our attention has been directed to State v. Brown 1111, 1113, involving 79 W. a case neither accident, reading: circumstantial evidence nor “In cases where the killing denied, proof depends upon the of that fact is circum- stances, killing the made that purely or where defense is the an accident, inquiry apparent important, it is the as to the motive is requested and in the appropriate, cases that character instruction is ’’ (cid:127) always given. and should The cases there cited the hold- sustain ing motive; that said was not entitled to an defendant instruction they dictum, support quoted reasoning but do not the made without authority. sustaining the issue or citation of thing,
Intent although and motive are not in law one and the same frequently popular, (Mo. so considered the mind. State v. Santino 1916), 976, 977(4), moving states: “Motive the wholly action; induces it has to do with desire. Intent is the which done, purpose design with which the act is and involves the will.” Hyde, 324(12), 322(7, 8), is to like effect.] It may is difficult to conceive a criminal act that not involve some beyond desire avarice, revenge, the act pleasure, et cetera. The itself— prohibits acts, motives; good
law bad -and do motives not. exonerate money A, pay crime. A impelled desires debt. his desire to debt, necessary pay B, his B it undertakes to rob and finds shoot resulting Broadly, composed B’s death. are of two crimes elements: (1) (2) the act and the precisely, intent. More the murder of B (1) (a) A, embraces series the muscular action of such as acts — loading revolver, raising arm, taking the pulling trig- aim and' the. ger; (b) the being concomitant of B range, circumstances within the being loaded, pistol cetera; (e) et consequences the of A’s muscular act, striking cartridge, ignition of the hammer powder, expelling bullet, passing through its space, striking body' penetrating B, body B undergoing and the physical changes resulting death; (2) in B’s A’s criminal intent. —and only independent, voluntary and self-willed acts of A are his may Again, generally speaking, it be said
muscular movements. A kill B him debt. The ultimate end pay intended to and rob A’s law the criminal payment precisely, was the of A’s debt. More within intent (absent statutory scope of A’s special provision), some only pro- the series of killing B embraces involved the offense of robbing of acts, scope whereas the of A’s motive embraces hibited *7 A, law, intended, may have payment B and the of A’s debt. desire, e., although sincerely desiring, This ulterior i. not B’s death. beyond portion extending the elements in law under the intent crime, constitutes, law, Sup- the the facts motive. essential the self-defense; purely B a pose, illustration, that A killed as another homicide; accidentally, e., homicide. justifiable purely or i. a excusable B and desired B’s If A intense hatred toward harbored the most death; yet, only A B save his if killed the facts established accidentally, own life B A be convicted because or killed is not to portion Here that B for B’s death. his hatred toward or his desire an offense elements essential intent within constitutive accompanying in law the defensive features of the intent embraces justifiable homicide; be or excusable and should involved issues of Motive, as thus under- part instructed as of the law of the ease. stood, evidentiary argument and the an fact—a circumstance for is recognized it. appellant’s consideration of the instruction so —and Accordingly, we have the issue and presenting the cases found involving (State (1912), circumstantial v. Aitken evidence ) (State 254, 266(III), 499, (5, 6) 144 W. 502 v. Clinton S. or accident (1919), 344, (VII), 841(10)) expressly 278 213 S. W. Mo. 350 Aitken case Brown case. The hold contra to dictum “ our observations. It states: It does reasoned issue sustains a from the a is material that not follow fact that circumstance it especially upon that circumstance. Nor does must be instructed because it would not be error follow that failure to instruct is error point. . In the case before us the court to instruct on did It error might It have done so. was not instruct on motive. motive, all which is but one of the circumstances to fail-to instruct require special and does not instruc- to be considered (1902), 449, 473(10), 68 W. v. Sam Brown tion.” State says (10), of the instruction: “This instruction was 576 also refused, acquitted simply a man not to be of crime properly because is perpetrating his motive for it cannot be discovered.” because [See (1915), 415(II), 51(5); v. 175 S. W. also State Cox Feeley (1906), 194 112 Am. Mo. State Rep. 511, St. 525.] jurisdiction to the that it is not error to
The in this is effect law (1900), “motive” v. Evans give proper instruction on [State 994, 1000(8); ease, supra]; (VIII), W. the Santino Mo. 59 S. Clinton, supra, Aitken and refuse to instruct thereon nor error to [the among cases]; given other if an but instruction be on behalf of the authorizing not, apparent a conviction whether motive defendant, upon proper request, is thereof. entitled to converse Foley (1898), 620(III), 733(3).] Mo. gave
In the instant the court appellant’s requested case instruction- misfortune, gave defense accident or but no instruction on given motive. instruction covered the constitutive de- case, appellant’s and, it, fensive features of as we read was more favorable to defendant than he was entitled to have We it. rule the point against appellant. judgment is Cooley Westimes, CC., affirmed. concur.
PER foregoing opinion by Bohling, C., CURIAM: —The adopted as opinion Tipton, JJ., concur; Leedy, J., the court. Ellison and concurs in result. *8 the relation of T. Wilkerson, Judge J. of The Missouri County, Probate Court Dallas Finley, Relators, and W. T. Judge H.C. of the 18th Judicial Circuit Skinker, County. of Dallas
Circuit Court (2d) 1156. Two,
Division March 1939.