272 Mo. 526 | Mo. | 1917
Defendant, tried in the circuit court of Cooper County, for murder in the first degree, for that, as it was charged in the indictment, he stabbed and killed one Philip Carpenter, was found guilty and his punishment assessed at death. From this conviction and the sentence bottomed thereon, he has, after the conventional motions, appealed.
The facts of this homicide as the, record discloses them run about thus: On the night of March 31, 1917, Philip Carpenter (hereinafter for brevity called deceased), and one Louis Orr, both of whom were printers, were together in the town of Boonville. After having taken a number of drinks of liquor, until deceased was somewhat under the influence thereof, and until Orr, as lie himself admits, was very drunk, they started about 11:30 o’clock at night down a certain alley in the town of Boonville, along which, it seems some considerable portion of the negro population of Boonville resides. After they had proceeded some little distance Orr stopped, but Carpenter kept going until he had reached a point somewhere near the center of the alley. Walking in front of deceased as he traversed this alley was one Stella Goosberry, a negress, who, it seems, lived with her husband in a house situate somewhere in the vicinity. This negro woman, who, as stated, was in front of deceased some little distance, and considerably in front of Orr, who had stopped, met about the center of the alley two negro men, one Ed. Porter, and defendant. This negress seems to have known both Porter and defendant; the former intimately, and the latter only casually. Upon meeting Porter and defendant, she complained to Porter that
Shortly after this, Orr, who had accompanied deceased into the alley, came running out and stated to a man whom he met, that deceased was in trouble down the alley. The alarm spread and certain persons went down the alley, and found deceased lying therein, stabbed and fatally wounded. A knife had been driven into the back of his neck, at the point of juncture of the head with the spinal column, almost severing his head from his body. From this wound he died some twelve hours later.
For some days defendant was not suspected of this murder, but Orr, who had been the companion of deceased during the evening on which deceased was killed, was arrested and held in custody for some three or four days. Subsequently the defendant,'who had left Boon-ville, and gone to Kansas City, was arrested and charged with this murder. Upon being arrested he confessed to' the marshal and to the sheriff, that he had stabbed the deceased, and attempted to tell them fully and in detail how the murder was committed. He told these officers of his going through the alley with Porter; of the meeting of the negro woman by Porter and him, and of part of the conversation which the woman had with Porter. But he did not hear the remark made by deceased to the negro woman. He told of the fight between Porter and deceased, and touching his own connection therewith said that he stood by without taking any part for some time, but that he had his knife partly open in his pocket with his hand on it; that deceased in the course of the fight between him and Porter, came close to defendant and struck
Defendant upon the trial testified as a witness in his own behalf. He there denied stabbing deceased at all, but did testify that deceased struck at him either with his hand or some weapon, it was too dark, he swore, for him to distinguish which, and that thereupon he struck at deceased with his hand, in which he held a knife; but that he did not touch deceased, and beyond striking at deceased when the latter struck at him, he took no part whatever in the fight between Porter and deceased. He denied having left Cooper County for the purpose of avoiding arrest and trial for the stabbing of deceased. He explained his presence in Kansas City by the statement that he and three others of his color and acquaintance had before the killing already agreed to go to Kansas City as soon as they were paid off, and that he went as soon as he got his money. Whether the other three went to Kansas City the record does not disclose.
At the dose of defendant’s cross-examination he was asked by counsel for the State, if he had ever been convicted of any crime, and he denied that he had been. Thereupon he was specifically asked by counsel for the State if he had not been convicted of vagrancy in the police court of the town of Boonville. 'He denied that he had ever been so convicted; whereupon, in rebuttal, the State offered the police judge, who testified that the records kept by the witness’s predecessor showed that defendant had been convicted of vagrancy in the police court of the town of Boonville, on the 10th day of February, 1913.
The trial resulted, as stated, in finding defendant guilty of murder in the first degree, and in a sentence to death as punishment therefor.
Such other facts as may be necessary to an understanding of the points we find ourselves compelled to discuss, will be found in our opinion.
Defendant urges upon our attention numerous alleged errors. Many of these we find ourselves unable to review for lack of proper preservation of them for
Among other matters urged, defendant complains that the learned trial court erred (1) in instructing the jury upon the presumption arising from flight, for that, (a) the facts shown by the record do not warrant any instruction upon the subject, and (b) the instruction given was bad; (2) in allowing defendant to be questioned, in an effort to impeach him about his conviction in the police court of vagrancy, and in offering testimony of such conviction, when defendant denied the fact; (3) in failing to instruct the jury (a) on manslaughter, and (b) on circumstantial evidence, and (4) in instructing the jury on accessories before the fact. These in their order.
I. The instruction given by the court on flight, read thus:
It is clear that this instruction by its terms assumes defendant’s guilt and begs the question upon the most vital issue in the case. It was the province of the jury to find and say whether the defendant “stabbed and killed Philip Carpenter,” and not the province of the court to assume this fact as true. If the stabbing had been admitted by defendant and his defense had been self-defense, no harm would have flowed from this assumption. But here defendant unequivocally denied that he stabbed deceased, and while the great weight of the testimony, and even his own extra-judicial confessions, unerringly point to the falsity of his denial.
Upon the contention that no instruction whatever upon the subject of flight was warranted by the facts, we are not able to agree with learned counsel. These facts were that on the Wednesday which followed the stabbing of deceased on Saturday night preceding, defendant left Cooper County and went to Kansas City, where he was shortly after arrested at a place and under environments which might well argue an attempt at concealment. We think that the jury had the right to consider whether defendant’s admitted going away from the scene and county of the alleged homicide, was or was not for the purpose of avoiding arrest and trial for this crime. But we are likewise thoroughly convinced that the instruction (or a separate one) which leaves to the jury to find the intent with which defendant left Cooper County and went to Kansas City, ought also aptly to embody the explanation which defendant gave upon the witness stand of his alleged flight, or reason for his presence in Kansas City. [State v. Potter, 108 Mo. 424; State v. Fairlamb, 121 Mo. 137; State v. Harris, 232 Mo. 317; State v. Walker, 98 Mo. 95; State v. Sparks, 195 S. W. 1031.]
We are constrained to conclude' that in the two behalves mentioned' the instruction on flight as given was bad, and that the giving thereof, in the form set out, constitutes reversible error.
We are of' the opinion that neither by our decisions, nor by statute, is a conviction for vagrancy in a city court “a criminal offense” within the purview of the above quoted statute. For while the procedure, or some of it, in a prosecution for the violation of a town or city ordinance is criminal in form, that is, it follows the forms of the criminal procedure, we have nevertheless uniformly held that it is but a civil action to recover a debt or penalty due the city for the infraction of its ordinances. [St. Louis v. Tielkemeyer, 226 Mo. l. c. 141 ; State v. Muir, 164 Mo. 610.]
In the Tielkemeyer case, supra, it was said by
“In City of Kansas v. Clark, 68 Mo. 588, it was held that a prosecution under a city ordinance for keeping a gambling table contrary to the ordinance was not a prosecution for a crime, but a civil suit to recover a penalty, the court saying: £Nor do we regard the violation of the ordinance under consideration as a crime, since “a crime . . . is an act committed in violation of a public law” (4 Black., Com., 5); a law coextensive with the boundaries of the State which enacts it. Such a definition is obviously inapplicable to a mere local law or ordinance, passed in pursuance of, and in subordination to, the general or public law, for the promotion and preservation of peace and good order in a particular locality, and enforced by the collection of a pecuniary penalty. ’ That language was quoted and followed as the correct rule of law in State v. Muir, 164 Mo. 610, in which it was held that a conviction under a city ordinance against gaming was not a bar to a subsequent prosecution for the same act under the State statute; in that case the court said that the prosecution under the city ordinance was a civil action, and quoted Cooley’s Const. Lim. (6 Ed.), p. 239, to sustain the doctrine. In Canton v. McDaniel, 188 Mo. 207, l. c. 228, the converse of the proposition was also held, that is, that an acquittal in a prosecution under the State statute
But, while they would appear to be sufficient, we are not called on wholly to rely upon the adjudged cases, to prove that a violation of a city ordinance is not a criminal offense. Our statute has by self-contained delimitations defined for us the meaning of this term. Section 4926, Revised Statutes 1909, quite obviously confines “criminal offense” to either a misdemeanor or a felony, as witness this language:
“The terms ‘crime,’ ‘offense,’ and ‘criminal offense,’ when used in this or any other statute, shall be construed to mean any offense, as well misdemeanor as felony, for which any punishment by imprisonment or fine, or both, may by law be inflicted.”
This we think settles the question without the necessity of considering the evil which might well flow from our writing into the law that a citizen convicted of failing to shovel the snow from an abutting sidewalk, or of failing to park an automobile at the prescribed angle, could have such facts shown years afterward to impeach his veracity'in a trial for murder, or rape,, or treason.
We have had occasion in numerous cases to define manslaughter in the fourth degree, and to set out the necessary facts which must appear in a case before an instruction for this grade of homicide is warranted. [State v. Gordon, 191 Mo. l. c. 125; State v. Myers, 221 Mo. l. c. 620; State v. Heath, 221 Mo. l. c. 586.] In the case of State v. Myers, supra, this court said:
“In State v. Gordon, 191 Mo. l. c. 125, the rule as applicable to this subject was thus announced: ‘At common law, words of reproach, howsoever grievous, were not provocation sufficient to free the party killing from the guilt of murder, nor were contemptuous or insulting actions or gestures without an assault upon the person, nor was any trespassing against lands or goods to have the effect to reduce the guilt of killing to a grade of manslaughter; the provocation must consist of personal violence. [East’s Pleas of the Crown, 233; 4 Blackstone, Com., 201; State v. Wieners, 66 Mo. 13.] And the common law rule in this respect is firmly established in this State by a long line of decisions.”
Measured by this rule, there is no ground for an instruction on manslaughter in the fourth degree. It is manifestly alone upon the testimony of defendant, on which, if at all, we must find a basis for such an instruction. According to defendant, he and his companion Porter met deceased, whom defendant did not know, and against whom he harbored no disclosed enmity. Suddenly upon a provocation unknown to defendant, Porter struck deceased and a fight ensued between deceased and Porter. While defendant was looking on, but taking no part in this fight, deceased came around near him in the course of the melee and struck at defendant but failed to hit him. Thereupon defendant stabbed and killed deceased. So we hold that there was
Other matters are urged upon our attention, but all such fall into that large category of things and matters which will not necessarily happen again.
For the errors pointed out let the case he reversed and remanded for a new trial not inconsistent with what we have said herein.