93 Mo. 547 | Mo. | 1887
The counsel for the defendant, who tried this cause in the circuit court, and are, therefore, presumed to be somewhat conversant with the facts therein, have not seen fit to furnish us with a statement of those facts. I will, therefore, have to wade through this voluminous record in order to become acquainted with them.
The homicide, which caused this appeal, occurred December 31, 1881, in the town of La Belle, Clark county, Missouri. On that day, about dark, Stoddard, the landlord of the hotel, on going into the office, saw sitting there by the stove the defendant in his socks. Several others were present, among them the deceased, a negro named Andy Roan, who was engaged in carrying water, when one Yates came in and asked Roan to pay a small debt he owed him; this was spoken in pleasantry, and was repeated, whereupon the defendant rose to his feet, and with the exclamation, “ I will make him pay it,” drew his pistol and shot Roan in the
Just before the shooting, the defendant had asked to be shown to his room, and when the landlord went to see about the room for him, and returning told him he was ready to show him to his room, he replied that he did not believe he would go. Yery soon thereafter the shooting occurred. It seems the defendant was a stranger to the landlord, and he certainly was to Yates, who had never seen him before that afternoon. Yates, story of the affair, in brief, is, that a little while before the shooting the defendant, who had his overcoat on and in his sock feet, and appeared to be drinking, hunched him with his elbow and said, “I am drunk-pretty d — d drunk, don’t give me away ;” that he then handed a bottle of whiskey to Yates and Hinson and asked them to take a drink with him, but they refused, when the defendant said, ‘ ‘ That leaves that much more-for me.” Yates also stated that the defendant, after telling the sheriff, “that’s my business,” immediately thereafter said, “I submit, gentlemen; let me get my boots on.” Yates also said that the defendant looked like and hiccoughed like a drunken man, and his tongue seemed to be thick. Wilson was also present when the shooting occurred. Wilson had seen the defendant about a year before, when he and his nephew hired a horse and buggy from Wilson, who kept a livery-stable. Wilson states that when the defendant shot Roan, he
Prior to the time of going to the hotel the defendant had been at Wilson’s livery-stable about 2 o’clock, when he made inquiry about feeding his horse and about a hotel; that he looked like a man who was cold, not drunk, but this was some three hours before the fatal occurrence. Medical testimony was introduced showing that the death of Roan was caused by the pistol shot.
Sommers, the sheriff, who arrested the defendant, had also seen him a couple of hours prior to the shooting in the room in which it took place. Lowe spoke' to him and called him “Doctor,” and asked him what was the matter with him (Lowe), and asked him to feel his pulse; that Lowe had a bottle of whiskey, drank from it and asked him to drink; wanted Sommers to tell him what was good for him; Sommers thought he was drunk, felt of his pulse and told him to take some coal oil.
Nunn corroborates the testimony of Sommers in most particulars. In addition he says that Lowe told Sommers he was drunk, and the latter, replied, “I think you are,” and prescribed coal oil; that Lowe had taken a drink from his bottle; he came back, took a seat and said he was “sanctified;” that Lowe, after saying he was drunk, repeated the remark with the qualification, that he was “pretty d — d drunk;” said he was raised in Kentucky; was raising a crop at Williamstown; said he would not tell where he got his whiskey ; that he was able to take care of himself; had bought his whiskey and paid for it; could take care of himself ; but did not want to be given away, and was down on his way below
The state here rested, and evidence was introduced for the defence. It consisted, in part, of numerous depositions taken in Kentucky. I will give the substance of four of these depositions and let them stand as types of the others. The deposition of McSpeak, taken in July, 1882, in Boone county, Kentucky, was to the effect that he became acquainted with the defendant in 1864, in Grant county, Kentucky, where Lowe and witness lived; that his full name was William Morehead Lowe; some called him “Moses” Lowe; knew him personally and intimately ; had worked for him in Kentucky some five or six years, till Lowe moved to Missouri; that, in June or July of said year, while the witness lived with Lowe and slept in the same room with him, Lowe left home directly after dinner, and returned in the evening just before supper, ate supper, when witness and others present tried to Induce Lowe to go bed, but he refused, stating that he was afraid; dare not sleep in the room, but went down into the orchard, and that was the last seen of him until morning, when witness, on getting up, saw Lowe coming up from the orchard, and asked him where he stayed the previous night, when he replied: “I dozed there, and they did not get me.” Witness then asked him “who,” and he said, “them fellows,” .and that was all the reply he would make; that after breakfast Lowe would work a few minutes, and then ■dodge off at something else; did not work at regular work, as he usually did ; that he looked wild out of his
Witness thereupon went with him to Dry Ridge, stayed with him all day, and returned with him to witness’ house, where he stayed all night; in the morning seemed better, but still looked wild out of his eyes when he went home ; that, on these occasions, though he was in the habit of taking his dram like other citizens, yet that he was not, in the opinion of witness, drunk or under the influence of whiskey, nor did witness see him drink any liquor during these times, and that witness would have known it had he done so. Witness further stated that, in 1866 or 1867, Lowe and witness still living in Grant county and in the same neighborhood, and about one and one-half miles apart, Lowe disappeared from home for about three weeks, none of the neighbors knowing what had become of him. Witness then went to Covington, Kentucky, and stopped at the
The next morning Lowe looked as wild and excited as he did the night before, but went with witness to Cincinnati; walked around all day ; stayed with witness that night at the Drovers’ hotel; the next morning seemed better and returned with witness to his home in Grant county ; that on this last occasion Lowe was not drinking, nor under the influence of liquor; that during these three “spells,” and the most of the time, Lowe was melancholy, moody, and despondent, and when standing would repeatedly drop his head as though in a deep study and trouble, and while standing or sitting
The depositions of Beard, J. G. Green, and D. Green, Dry Ridge, Grant county, Kentucky, taken in July, 1882, were next read in evidence. Beard’s deposition was to the effect that he worked with Lowe pretty much all the time during the years 1870, ’71, and ’72 ; worked with him some six or eight months before discovering something wrong in his. conduct; while at work he would suddenly become wild and would not appear to know what he was doing; sometimes the spells would come on suddenly and sometimes gradually; would commence talking on one subject, become excited and change to another subject, without finishing the first conversation. While in one of those “spells” Lowe would say some persons wanted to kill him, or were watching for him, and would fire his pistol or gun into the trees or up into the air; sometimes, while in one of those “spells,” would leave the place and be gone several days; during those “spells” would frequently say, “them fellows are after me;” sometimes in those “spells” would leave the house after night, take his gun and fire it off after leaving the house. At other times, when Lowe would say some persons were after him trying to kill him, he would get down on his
The deposition of W. J. Green was much to the same effect as that of the preceding witnesses. He gives an instance that when he and his wife were riding by a house where Lowe- was, when Lowe ran out into the front yard, and when about twenty steps distant he began firing his pistol towards them, causing witness’ wife’s horse to throw her, but never stopped for that, but kept on-firing until he got through, when he gave a dry laugh and hastily walked back to the house. In his deposition, D. Green confirms the testimony of the other witnesses and testifies to Lowe having, without any apparent cause, shot at Nix, a blacksmith, while Nix was conversing with others, and Lowe was sitting down on a bench apart from the rest and saying nothing. This witness also testifies to seeing Lowe hiding around in the bushes, and saying “they are after me that this occurrence took place in 1862, but after the death of his two nephews in 1866, to whom Lowe seemed much attached, he seemed to take their deaths very hard, and his mind seemed to grow worse, and his bad spells became more frequent and more noticeable. In the spring of 1870 this witness discovered Lowe hiding around in his cornfield, and when discovered Lowe ran off into the woods and brush, but after two or three hours returned, appearing wild and excited, but upon being asked what was the matter, made no reply. This witness states that from that time on Lowe was frequently in this same condition of mind until he left for Missouri, the “spells” averaging once a month. In the opinion of this witness, the mind of Lowe was unsound.
There was much other testimony of this sort introduced. There was some testimony offered by the state
I. I have set out the evidence at so great a length for two purposes: (1) Because it is claimed that the verdict is so palpably wrong and against the evidence as to indicate that the jury were actuated by prejudice; and (2) in order to a better understanding of the instructions given and refused. I do not regard the evidence tending to show the defendant’s guilt, of such a character, and as lacking so much in probative force, when considered in connection with that offered on the part of the defendant, as would authorize this court in interfering with the verdict of the jury, and in saying this I do but follow frequent adjudications of this court. State v. Cook, 58 Mo. 548; State v. Musick, 71 Mo. 401. Here the point sharply made and contested was, whether the homicidal act was the result of a disordered brain by reason of drunkenness or by reason of insanity, and the verdict of the jury has sanctioned the latter conclusion, a conclusion which should not be disturbed if proper instructions were given.
“18. If the jury shall believe, from the evidence, that defendant was insane when he left the state of Kentucky in the year A. X)., 1877, then the presumption of the law, that he was sane and of sound mind at the time he shot the negro, is removed and repelled, and in case they shall believe that he was insane or of unsound mind when he left Kentucky in 1877, as aforesaid, then and in that case the law presumes that such insanity continued up to and existed at the very time he shot the negro, and in that case the defendant is not required to prove that he was insane or of unsound mind at the time he shot the negro. But it devolves upon the.state, in that case, to prove that, at the time defendant shot the negro, he was sane or knew the right from the wrong.”
■ The rule of law, as I understand it to be, is, that, where insanity is the result of some temporary cause, as a fit of sickness or the like, that then no presumptions of continuity flow from such temporary cause ; but, on the other hand, when you establish, as the evidence tended
For the reasons stated, error was committed in giving the seventh instruction on behalf of the state, which was as follows:
c£7. If the jury shall believe, from the evidence in the cause, that from, the year 1862, up to the time of the killing of the deceased, Andrew Roan, the defendant was for certain periods insane, and for certain other periods sane, then before the jury can acquit the defendant they must be satisfied, from the evidence in the*572 cause, that defendant was insane at the time of the killing, and the burden of establishing such insanity rests upon the defendant.”
III. I now proceed to examine the indictment,. the insufficiency of which has been questioned : It employs neither the words, “deliberately,” nor “premeditatedly,” but charges the homicidal act to have been done “feloniously, wilfully, and with malice aforethought.” The'point is whether the indictment sufficiently charges the offence of which the defendant stands convicted ; i. e., murder in the second degree. Our statute provides that, “Every murder which shall be committed by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate, any arson, rape, robbery, burglary, or mayhem, shall be deemed murder in the first degree.” R. S., 1879, sec. ,1232.
The next succeeding section says : “All other kinds of murder at common law, not herein declared to be manslaughter, or justifiable or excusable homicide, shall be deemed murder in the second degree.” R. S., sec. 1233. This is a well-bethumbed statute, and a great deal has been written concerning it. Prior to 1531, when the statute of 23 Hen. VIII., c. 1, section 3, was passed, only one form of felonious homicide was known ; that was known as manslaughter, and that form necessarily included those malicious killings since denominated murder. All homicides were then punishable with death; but clergy was allowed for all. But that statute, according to its express terms, took away clergy in all cases where the homicide was committed “wilfully and of malice aforethought,” and to that class of offences thus particularly designated, the name of murder was subsequently given. This statute sharply defined the distinction, which still remains, between mur
After that statute went into operation, in order to set forth every allegation of the fact pertaining to the punishment, and thus comply with a well-known rule of criminal pleading, the old form of indictment was expanded so as to include the words, “wilfully and of malice aforethought.” Indictments thus expanded con-. tained the operative words of the statute referred to, thus : “That A, at, etc., on, etc., in and upon B, feloniously, wilfully, and with malice aforethought, did make an assault,” etc., etc. Our statute, above quoted, having divided murder into two degrees, designating murder in the first degree as a deliberate and premeditated killing, and providing that “all other kinds of murder at common law not herein, etc., * * shall be deemed murder in the second degree,” it became necessary under the rules of good pleading, in • order to charge murder in the first degree, to expand the old common-law form of indictment for murder, by adding the operative words of our statute to the old common-law form, and leaving murder in the second degree to be described under the old form, just as manslaughter continued to be described under the old form after the change in form necessitated by the enactment of 23 Hen. VIII. Murder in the second degree is murder at common law, bereft of all the aggravating incidents designated in section 1232. In a word, murder in the first degree, under our statute, is, in one sense, the subtrahend of murder at common law, and murder in the second degree, the remainder. Since murder in the second degree is murder at common law, its only appropriate description is to be found in the old common-law form of indictment for murder after the change made by 23 Hen. VIII. These views will be found fully supported. 2 Bishop Crim. Proc., secs. 498, 499, 541, 563, and 564; Bower v. State, 5 Mo. 364; State v. Jones, 20 Mo. 58; Fouts v. State, 4 G. Greene (Iowa)
The words, “with malice aforethought,” are the legal equivalents of “with malice and premeditation.” State v. Curtis, 70 Mo. 594; People v. Vance, 21 Cal. 400.
IV. It is claimed that a reversal of the judgment must occur because the evidence shows a case of murder in the first degree, or of manslaughter in the fourth degree. Under the provisions of section 1654, Revised Statutes, 1879, it constitutes no ground of objection that a person is found guilty of an offence less in degree than that of which he is really guilty. It seems singular, however, that the indictment was not drawn for murder in the first degree. The defendant, if not insane, was clearly guilty of that degree of crime.
Por the errors mentioned, the judgment should be reversed and the cause remanded.