*1 831 (2d)W. 47. Aрpellant. S. Nevils, v. James Two, June Division
E. Dorris, P. Homer Rinehart and G. II. appellant. Jachson for *2 Shari el, Attorney-General,
Stralton and Silas E. Garner, Special Attorney-General, respondent. Assistant sent- from a verdict FITZSIMMONS, appeals C. Defendant him finding Missouri, Oregon County, Circuit Court ence years at five fixing punishment his guilty of secpnd degree in the charged murder penitentiary. He County. But of Howell Court in the Circuit by information filed ease was called change venue, when the took cir- regular judge of the County, Oregon disqualified the trial in DeaRINg another cir- called from E. M. was then cuit. Honorable at the trial. preside cuit to con- 1930, appellant was September 26, offense,
At the time of County, he was on township Howell Springs stable of Willow lоoking county, for a man View, in that of Mountain the outskirts felony charging had issued been for whom a warrant named Coburn who, Bolerjack, about County. was Bus The man killed Texas driving evening 26, 1930, eight September o’clock *3 Cabool, 'View to his home at from Mountain two-door Chevrolet sedan Bolerjack, County. Bolerjack wife, with him his Ruth in Texas had they attended cousin, Edna James. That had and his afternoon Bolerjack’s grandmother in View. With the funeral of Mountain deputy Yollmer, were Mel a appellant, shooting, at the time of the Cabool, Booker, city H. marshal Cabool. and W. a constable County brought them officers had the warrant These Texas County Coburn, duly by arrest of had it endorsed a Howell the justice apрellant aid other peace of the and had enlisted the and County officers in the search for Coburn. Howell Highway View, No. 60 Mountain United States skirts what highway town, and, edge, near its called old runs into the outer the the junction angle filling station, At small two roads meet. the was a officers, appellant, three Willow and there the Constable Nevils of Boоker, Deputy City Springs, and Constable Vollmer and Marshal Cabool, They parked planned stop both of their car. automobiles coming Cohurn, out of View to-search for Mountain and the accused. supposed riding coupe. They scarcely He was to be a Ford had they headlights stopped their car when saw car the of another сom- ing along out of Mountain View the old Highway road toward Bolerjaek’s proved This to be Chevrolet coach. later Vollmer and Booker, testifying State, they for the stated that remained their shooting, appellant got car the and that out, carry- until after Nevils searchlight ing a in his left hand and his calibre automatic Colt’s right pistol Appellant hand. in his admitted that he left the au- tomobile, searchlight carrying pistol, the and and walked into the old on-coming highway the car. But also to halt he testified that Vollmer stepped from their car and took Booker their stand higher and angular junction apex ground highways. the the of the near Bolerjack Mrs. James were in the back Mrs. seat of the and. Bolerjack driving. which Bus They coach Chevrolet testified a road, Highway approached 60, along U. S. the old as the ear light and road, path ear, flashed stepped
man into the the shooting. or five began four almost at same moment lie fired the door, third right-hand radiator, the pierced shots. another One. right right fourth struck hub of rear window frame and Bolеrjack close that rear wheel. The man with the was so they hitting thought him. swerved the car avoid The women rings they shoes. up about be held and hid their their Bolerjack Nevils, women stopped appellant his car whom the and shooting, opened identified as man in the road who had done Bolerjack, driver, ordered the the left-hand door near up They obey inmates their hands. not to stick did guess you up. stop said: “1 stick I will the next time said ’em you.” stop approached one Booker then car. tries to Vollmer and They Bolerjaeks James, Mrs. whom knew from identified the Cabool, stopped wrong he per- and informed had Bolerjaeks sons. then to drive on. Bus ordered the But Bolerjack fainting in fell his seat in the car and was back carried to the of his father in home Mountain View. lie had a bullet wound right in his near hip. through side The course of the bullet was lodging place Bolerjack to a left hip. bowels near the died from hospital Springfield, Missouri, wound on October days shooting. six bullet upon postmortem after was found examination and was State’s dеscribed witnesses as of 45 calibre. Kelley, Sheriff County, day C. R. Howell testified or two shooting, questioned appellant, after when prosecuting attorney, not Vollmer or Brooks, stated that shooting. did the Other witnesses testified that made a like admission on *4 night shooting Bolerjack’s the home of of the the father. behalf, Appellant, on his own testified that steрped he into the light displayed Bolerjack’s flash when the road and car was distant that, .quarter Bolerjack’s a mile. He also testified when car came hearing him, yelled of distance he to the occupants: within “Halt arrest.” The car You are under then that car. increased speed its him for and sudden drive he had jump and made a to aside. Ap- he fired four that shots he pellant admitted stated that these casings at at the tire the rear of were directed the ear. He also eight in all shots were about fired that and that testified while he high ground from came the firing, shots other was where Vollmer standing. They they denied that any Brooks were did and shooting firing after their car until the they left had or that сeased. Other appellant, testified witnesses, behalf on had examined tragedy right bullet hole in the and of the front scene door bullet from of the The course without Bolerjaek’s car. within and, opinion, their downward, shot ranged could not car have place fired from been where said to have been standing. have higher But it could fired from the been land where Yollmer and Brooks were said to have been. Four recovered bullets were State exhibited. "Witnesses testified that all these were from a 45 had calibre such as used. Witnesses for two testified that of the bullets had been fired from a- weapon of smaller calibre. de- second I. The gave trial murder court on instructions giving
gree manslaughter. and assigns as error instruc- these will instructions. We first the examine ap- 1930, tion, No. that, September jury It informed the on County; pellant Howell township in Springs was constable of Willow Coun- Texas peace by justice held a warrant issued of the a this felony; that ty charged for the with a Coburn, arrest of Charles Willow justice peace warrant of the by had been indorsed warrant, appel- Springs by township, this County, Howell and Coburn necessary lant was force to arrest authorized to use all life”, of place County, taking of the in Howell “even unto court “however, the say: Coburn. instruction then proceeds by the you instructs would be authorized that before the defendant de- being by the said into driven warrant to shoot thе automobile to exercise ceased, duty Bolerjaek, it was of the defendant Bus care- reasonably the care which be exercised and caution would wheth- ascertain prudent ful under circumstances to and man similar Charles driving said er said automobile the man in and case, you from the Coburn, if believe find evidence and and doubt, such bеyond defendant not exercise that the did reasonable making carelessly recklessly, without did and caution, care and pru- which would have been made a careful and investigation an circumstances, county did in of Howell man similar dent under recklessly Missouri, carelessly shoot into said auto- in the State of pistol and Bus 45 calibre automatic wound the said mobile with a Bolerjaek Bus Bolerjaek, which the said on the 2nd from wound county Missouri, of Greene day October, guilty died, or not then the defendant whether Bolerjaek.” to kill the said Bus be intended - ground this instruction Appellant assails it failed beqause negligence correctly culpable require it did not to define imputed carelessness negligence that the find regard life, human proper incompatible merely- and that- it *5 negligence in a ordinary actionable civil suit. Appellant defined attack instruction: support Millin, in State v. cites 694; v. Baublits 553, (Mo.), 300 S. W. 324 1199; 318 Mo. Mo. (2d) 16; (Mo.), v. 326 962, State Melton Mo. (2d) 27 S. W. 33 S. W. manslaughter, Millin case the In which the defendant
836 was struck who woman convicted, of the death of a arose out was zone safety standing in a she was automobile while defendant’s misty night. In that City on a Kansas street a much-traveled on some- to do negligence “the omission culpable was defined as case, do, or the would reasonable, man thing prudent and honest which a cir- all not do under something man would doing of which such a in- Obviously this surrounding particular case.” еach cumstances an action negligence, supporting merely ordinary defined struction cause and the judgment properly reversed damages, for instruction. in this remanded the error He deputy game warden. case was a in the Baublits The defendant who hear defend- shot and a who was deaf and did not killed hunter moving game. license, kept pursuit in ant’s orders to show his straight up in the contended that he fired three shots Defendant hitting air attention intention to attract the hunter’s and had no culpable negligence given in him. An instruction on the Baublits very (supra), case was similar to the instruction in the Millin case judgment. and caused a reversal of the sentence The court opinion its said : gross
“Culpable nеgligence is tantamount carelessness or incompatible regard recklessness proper for human life.” (Mo.), v. 324 1199, (2d) Mo. 16, Baublits S. W. [State l. c. 21.] urges the instant case that the instruction given culpable negligence gross did not describe as in carelessness compatible regard proper with a life, for human and therefore that it was a reversible еrror.
In the Emery, earlier case of State v. Mo. 77, the defendant was convicted of for the death friend, of a killed bullet from accidentally discharged while the defendant playfully brandishing given it. Instructions in that case as signed as error because did not contain the “culpable.” word The court opinion (78 in its 80) said Mo. l. c. : “It was unneces sary that the instructiоns should contain the ‘culpable;’ word it they conveyed was sufficient that to the minds of the other and equivalent expressive words of the idea of culpability.” ño, too, in case, unnecessary instant it was the assailed instruction culpable negligence should define incompatible with a proper re gard life, conveyed if human it to the minds of the jury the same idea other words. If a synonym of: the phrase absent is es sential to the correctness of the instruction may it be found in the “recklessly” adverb which is in the instruction. “Recklessly” im greater degree grosser plies or a form negligence than want ordinary City care. Kansas Court of Appeals case City, App. Plummer v. 48 Mo. Kansas l. c. makes cоmments on noun “recklessness” which equally are applicable here to the “recklessly.” adverb The court opinion by EllisON, J.,
837 said: is much carelessness, “Recklessness sometimes includes it but to applied than carelessness, implies wilfulness, more and when it be person an act it is To characterize done to another wantonness. etc., utterly regardless consequences. [Lafayette, is to be reckless of Ry. 76; 26 94 Adams, Bridgman, v. v. N. C. Co. Ind. 888.] merely ordinary care, Recklessness, being instead the want of nearly is more And is the want of care. so it understood Dictionary’ ‘Century speech. common as: ‘Reckless’ is defined folly, recking consequences, desperately heedless, ‘Not as from passiоn perversity, impetuosity, rashly or adventurous. or “ 1 my one, liege, “I am whom the vile blows and buffets of the I spite have so incensed am I world that reckless what do to ’ ” McB., world. O’Brien Sha. IlI.-I-llO.” Reference to is also made Loomis, App. v. Mo. l. c. distinction is made be where ordinary negligence tween and reckless conduct. opinion, manslaughter
In convеy our to instruction did jurors culpable negligence, ap minds of the correct idea of plicable case, to subject the facts of this is and it not to criticisms culpable negligence negligence It not ordinary made. did define as trial court in Mill did in and Baublits It went cases. fur jury manslaug ther appellant guilty and directed the to find provided jury beyond ter ap found reasonable doubt pellant reasonably not did exercise the care and caution of a care prudent ful fugitive and man to ascertain whether the Coburn driving upon carelessly recklessly the car fired before and dis major charged 45 calibre pistol his automatic into the car. A dif manslaughter ference between thе facts of this case other cases carelessly in which weapons automobiles ivere driven or were ac recklessly cidentally case, appellant fired is this inten tionally discharged Bolerjack’s disregard pistol his car in reckless of the fact whether the hunted or Coburn some one else was in the comports say car. It with reason and sense to that an intentional firing of heavy shots from moving four calibre'at au driver, person, tomobile which there must be at least one regard “incompatible proper with a human life’’ whether the quoted phrase is in the instruction or not. Manslaughter is thus : (Sec. 3988, 1929) defined R S. the statute “Every killing being of a act, human procurement culp or negligenсe able another, not herein declared to be murder or ex manslaughter.’’ justifiable cusable or homicide, shall be deemed th;s statutory instruction in this is in with case accord support definition. Further may the instruction be found in this given statute and in other instructions We have seen that the State jury submitted the case to degree instructions for second manslaughter. Appellant, by given murder and one instruction homicide, instance, justifiable his presented defense By this it found jury acquit if instruction was told at manner,” Bolerjaek drove in a “reckless automobile appellant, it intent do tempted to drive over at bodily great harm, if found that also offense, “appellant Bolerjaek tempted arrest for this *7 reаsonably necessary to and there no more force than then used was justifiable homicide accomplish of his arrest.” of the modes One necessarily 3985, 1929), (Sec. R. S. is “when the statute defined in any by ways apprehend means to attempting in lawful committed and. ’’ any felony person committed. instance, by By given ap- of the court the another instructiоn murder jury appellant guilty was not to find of pellant, the directed - although yet jury appellant Bolerjaek, shot that found that if the stopping of purpose for the. it appellant shot into the automobile Bolerjaek. Quite clearly any to kill was not with intent the and guided arriving by this instruction its verdict. purpose appellant’s of these to point and the references instruc- The every point firing that from of tions to make clear view the. are of into automobile was intentional. pistol at and the the careless appellant lay in doing his so reckless conduct of first without having fugitive ascertain and caution to whether used care C'oburn question opinion car. We of that apрellant’s are of was guilt properly by was submitted Instruction 5. assigns testimony
IT. as error the of the witness Broyles. night The later was a watchman at Cabool. On day shooting appellant Broyles, arising in a conversation out of Coburn, fugitive pursuit and arrest of the impending discussed stop to refuse by of some auto drivers when the habit ordered quoted Broyles saying: “T so tо do. officers have made ” say I ‘stop,’ I my ‘stop.’ mean mind that when up It is doubtful statement, could be held to be reversible whether this error. But against appellant ruled assignment should be for the reason that only to objections questions. the form of at the trial went assigns trial court as error action of the Appellant, III. jurors thirty jurors panel to remain twо permitting try their voir dire examination the two On the cause. qualified to opinions newspaper on they based had formed jurors testified charged. Tn which answer the offense reports they try could answered case the court questions Section Revised Statutes evidence. on the law and challenge juror good that he cause “It be prоvides: shall issue, or opinion on material fact an or delivered has formed opinion only is founded on it that such tried, appear but if to be rumor newspaper reports, and not prejudice sueb to or bias juror may mind of the be sworn.” From the record made, it does appear appellant’s not rights prejudiced by the action sustaining thе court in not his challenges to jurors. these two It may be added while thirty entitled to qualified jurors, jurors neither the two challenged sat in the case. This assignment against is appellant. ruled
IY. Appellant given by two criticises instructions the court at the degree. ap instance of the State on murder in the second As pellant guilty was found of manslaughter, offensе, a lesser the com plaints against degree instructions, the second murder even if well founded, not are cause a reversal. Finding Cooley error, judgment
Y. prejudicial no is affirmed. Westimes, (7(7., concur. foregoing opinion PER OTTR1AM: The Fitzsimmons, C., *8 concur. judges adopted opinion of court. All of the Company, Forsyth and Water Hicks, Appellant, v. J. B. Electric J. H. S. W. Root. Corporation, Chas. C. Boswell Groom, (2d) 1045. S. W. One, June Division