142 Mo. 135 | Mo. | 1897
George and Charles May, respectively uncle and nephew, appeal to this court from their conviction of murder in the first degree. "William I. Burdette is the name of the person killed, and the indictment charges the homicide to have been done on the ninth day of February, 1896, with a heavy wooden club, and that with it the skull of Williám I. Burdette was broken and crushed by the defendants.
Touching the circumstances attendant on the tragedy, there is the usual conflict in the testimony. About two weeks prior to the ninth of February aforesaid, Charley May, as he was usually called, arrived at his uncle’s house; he was a stranger in those parts. William I. Burdette had a son by the name of “Bill” Burdette, who was a prominent figure in this presently-to-be-disclosed drama of the countryside. The elder Burdette and the elder May lived on adjoining farms and between them, as is frequently the case between rival nations occupying contiguous territory, there existed feelings less calculated to “raise a mortal to the skies” than to “drag an angel down.”
Old man Burdette would not let George May set traps on his farm to catch skunks, and there was anticipatory trouble between them in case the elder Burdette compelled the elder May to work a certain piece of road. It does not appear, however, that May ever was compelled to do such work. But toward “Bill” Burdette the son George May entertained a special aversion, which in about October of the precedent year gave token of its existence by a fight occurring between the parties which, as May got the better of the combat, resulted in the defeated party causing the arrest of May, and in consequence of the latter being fined,
Bill Burdette had formerly been a resident of Kansas, and while there placed a pretium affectionis on a set of harness (Vide, 4 Cent. Dic. 4714; 5 Jacob, Law Dic. 281; also, Jones v. Williams, 139 Mo. loc. cit. 37; 39 S. W. Rep. 486) ; and in consequence of its informal appropriation, he was for a time forcibly secluded from ordinary social intercourse. On his release he returned to Missouri. But Charley May had also resided in Kansas and was in this respect his peer, and could add the similiter to Bill Burdette’s unconventional method of acquiring property. Shortly after the expiration of Charley May’s prison sentence he, too, returned to Missouri. These preliminaries are necessary to an understanding of the previous biographies of the chief persons mentioned in this record and of their relations to and toward each other. Having disposed of these prefatory matters, we proceed to relate those things which have a closer bearing on the issue joined in this case.
On the morning of Sunday, the ninth day of February, 1896, George May, his two little girls aged respectively thirteen and eleven years, and Charles
Pretty soon after this, George May, Charley and the little girls left for home, the road leading back to their home turning first west for about two hundred yards, and then turns south. On the east side of this road there was a hedge fence and a cornfield, and on the west side of this hedge between it and the road was a bank five or six feet high, and on this ran a path. At the corner where the road turns south there is a gate leading into Elliott’s field. Into this gate
A somewhat different version of this story is told by the little daughters of George May, who testified that after walking a short distance in the cornfield, they
Behind the parties in the spring wagon, as it advanced on south, there rode on horseback the same parties that went with them to church, to wit, Claude Andrews, Mrs. Ida Elliott and a single daughter of ¥m, I. Burdette, and behind rode Mr. Coleman, also on horseback. Claude. Andrews, a State’s witness, testifies that he was just behind the spring wagon, and when the mules stopped and old man Burdette got out with his whip and went round in front of his mules to assist his son, he, witness, ran ahead and had seized hold of Charley May before George May and old man Burdette met in front.of the mules and had their encounter there. He also states that George May struck old man Burdette fowr times with the club, the last time when he- was prone on the ground.
The testimony of James Coleman forms a pleasing contrast with that of some other witnesses for the State.’ He was disinterested and evidently a cool observer of what occurred. He testifies that when old man Burdette left the church and started home in the spring wagon with his family, witness was riding about one
Mrs. Burdette, who was in the spring wagon, in testifying states that she saw the fight between Charley May and Bill Burdette and that it occurred thirty or forty yards in advance of the spring wagon as it moved down south; that she saw Charley May pull Bill Burdette off his horse and shove him into the ditch when Bill Burdette raised up on his elbow. The spring wagon having approached very close to the parties, Mrs. Burdette says she told her husband to get out and back her son up or else Charley May would kill him. Her husband, thus instigated, when the mules stopped,
George May, testifying in his own behalf, confirms the preceding statement; and he confirms the statement of his little girls that old man Burdette had reached Charley and was hitting him over the head with the butt end of the whip before he got over the hedge, seized the club and hit old man Burdette over the head with it. He.also testifies that he never struck
Charley May, in testifying, says that when he was on top of Bill Burdette “pounding him in the head,” that old man Burdette hit him across the head with the whip and that he, witness, did not see any of the fight between George May and old man Burdette. The foregoing is regarded as a sufficiently substantial statement of the facts in this case in order to properly understand it, and the rulings made by the lower court.
Before going into a discussion of the merits of this case, it is necessary to notice the ruling made touching the panel of jurors. The bill of exceptions contains this recital: “A list of said jurors was delivered to the defendants at 12 o’clock noon on Saturday, the twenty-first day of November, 1896, and the court
1. As Sunday is dies non as to judicial proceedings, it is not counted in computing the time in which motions are to be filed in court or other steps taken therein of .a similar nature in pending causes. This was the rule at common law and still remains unchanged by our statute. Twenty-four working hours are what the statute means; and it does not require either lawyers or judges to work on Sunday. Bank v. Williams, 46 Mo. 17; Cattell v. Pub. Co., 88 Mo. 356; State v. Harris, 121 Mo. 445; Maloney v. Railroad, 122 Mo. 106. The recital shows that the list was delivered at a certain time to defendant and it will be presumed this was done on request; and if so, defendants can not be presumed to have waived, but on the contrary to have insisted on, their privileges, and this is shown also by their exception saved to the ruling mentioned.
Section 4204 of the laws of 1895, page 165, is as follows: “A list of jurors who have been found by the court to be qualified to sit as such in his case shall be delivered to the defendant, in the cases specified in the first subdivision of section 4200, at least twenty-four hours before the trial, and in the cases specified in the second subdivision of said section, at least twelve hours before the trial; and in other cases, before the jury is sworn, if such list be required.” This section is a transcript of section 4204, Revised Statutes 1889, except that it changes forty-eight hours to twenty-four, and except, also, that it changes the punctuation in that section in this way:
That for a comma in the original section after the second occurrence of the word trial, is substituted a semicolon. This I understand from an eminent punctuator, causes the word “required” to refer only to “other cases,” where a list may be demanded before a jury is sworn, leaving the party entitled thereto to an absolute right to the length of time specified in the statute, subject, of course, to an act on his part of unmistakable waiver. The Secretary of State informs us that the punctuation is the same on the original bill as found in the printed laws of 1895. Prom this it seems evident that the legislature intended something by the change made in the punctuation, and that their meaning was that already indicated.
The lower court consequently erred in ruling as it did.
2. The defendants, having offered themselves as witnesses, it was competent under our rulings to attack their general moral character. State v. Grant, 79 Mo. 113, and cases cited; but it rather seems that the prosecutor did not seem to definitely establish much in
3. The State ■ proved in what county Wm. I. Burdette died, but not in what county the mortal wound occurred.
4. Error was committed in refusing to give the first instruction asked by defendants, which was the following:
“If you find from the evidence that the defendant George May intentionally killed William I. Burdette by hitting him over the head with the stick mentioned in evidence, and that such stick was a deadly weapon, then the law presumes that such killing was murder in the second degree in the absence of evidence to the contrary.”
' The doctrine embodied in this instruction is well settled law in this State, and has been for a long period. State v. Tabor, 95 Mo. loc. cit. 595, and cases cited. The trial court, it is true, instructed as to the elements of murder in the second degree, but the particular feature presented in the refused instruction was not given.
5. The threats which the evidence tended to show that George May uttered with regard to the Burdettes was obviously inadmissible as to Charles May, and this for several reasons. The theory of the State was a conspiracy to effect the death of one or more of the Burdettes; but at the time these threats are alleged to have been made, Charles May did not reside in Missouri, and there was no conspiracy in existence, unless indeed George could be said to have conspired with himself; a circumstance quite unusual.
Where a person joins a conspiracy already existent, he thereby ratifies any acts done or threats previously made by the conspirators in furtherance of the
6. This brings us to the consideration of the third instruction from another point of view and in a different aspect. Did the words of Bill Burdette as to what he said occurred in the church amount to any evidence of a conspiracy to effect the great bodily harm or death of either of the Burdettes ? We are not of opinion that it did, for it would be going a great way to hold that such mere words and designation of a person would amount to evidence of an agreement to effect either of the guilty purposes before mentioned; the doctrine of chances or of preponderating probabilities does not apply, to a case like this where human lives are at stake. Even if it be granted that those spoken words were evidence of a conspiracy to kill either or both of the Burdettes, there is no evidence of a preparation to effect such design; no arms were carried by the so-called conspirators; Charles May only had a pocket knife, and George only had a club which he picked up on the spur of the moment after old man Burdette had jumped from the spring wagon and was advancing on Charley May, or else had reached and struck him twice over the head with the butt end of the whip.
But suppose (for we can only suppose) that the
Now the evidence shows very clearly that the combat between George May and old man Burdette was an entirely different and independent affair from that in which Charley May was engaged, and of the former of which Charley knew nothing. Nor do we think the result is at all affected by the alleged exclamation of George May to Charles May, to “catch him and kill him,” as such words might naturally spring from the excitement of the occasion; and beside, George May’s exclamations could have no effect to establish an agreement between George May and Charley May to effect an unlawful purpose, unless a prior and existing conspiracy had been shown to exist between them, which has not been done. For these reasons we are of opinion that an instruction should have been given as asked, instructing the jury to find Charley May not guilty.
7. Recognition was properly given in the instructions to the fact that defendants might be found guilty of a less grade of homicide than murder in the second degree.
8. But notwithstanding what is above said, it is proper also to say that if it be true that George May, after old man Burdette was lying prone and helpless on the ground, struck him on the head with the club, this,
9. Evidence was introduced without objection by defendants’ then counsel, that one Horn, a justice of the peace, arming himself with a pistol and without warrant and upon information derived from another, proceeded to George May’s house and arrested the defendants who objected to the same and offered some resistance thereto, since they questioned the squire’s authority to make the arrest. The justice had no authority to make such arrest. Kelley’s Crim. Law, sec. 59; R. S. 1889, sec. 4333.
But if he had, such evidence was in regard to another distinct and subsequent offense which had no connection with and could shed no light upon the previous homicide. Its only tendency was to prejudice the jury against the defendants and to confuse them in regard to the real issues and evidence in the cause. State v. Jackson, 95 Mo. loc. cit. 649, and eases cited; State v. Farris, 129 Ill. 521.
The court, therefore, of its own motion should have refused to admit such wholly irrelevant evidence. It becomes at times the duty of a court to take such a course, although, if no objection be taken at the time to the admission of such evidence, no advantage can be taken in an appellate court of such failure of the trial court to act.
The premises considered, we reverse the judgment as to Charles May, and order his discharge. The judgment as to George May is also reversed, and the cause as to him remanded.