228 Mo. 443 | Mo. | 1910
This cause is pending upon appeal on the part of the defendant from a judgment of the circuit court of Ripley county, Missouri, convicting him of murder of the first degree.
On the 16th day of February, 19091, the prosecuting attorney of Ripley county filed in the circuit court an information charging appellant with murder in the first degree. At the March term of court appellant waived formal arraignment and entered his plea of not guilty. A jury was forthwith impaneled and sworn and the trial proceeded.
The evidence on the .part of the State tended to show that during the year 1908 defendant and his brother, the deceased, lived together, “batched,” as the witnesses put it, on a farm in Ripley county, Missouri.
On November 12, 1908, some twelve hours prior to the death of Andrew Rumfelt, he and defendant were observed “not to appear right, like they had at other times,” and it was noticed that they did not speak to each other.
At about 11 p. m., November 12,1908, W. A. Moore was aroused by defendant repeatedly calling his name. Moore arose and at his kitchen door met defendant, gun in hand. Defendant told his brother-in-law that he was awakened by the report of a gun; that he supposed his brother was shooting at a stray dog, probably; that he felt to see if his brother was in bed and at that moment a second shot was fired into the bed near his, defendant’s head; that he threw back the covers, sprang out of bed, seized his gun and fired, but “did not know which way he shot;” that he got more shells from the mantel, spilling others upon the floor, reloaded his gun and fired at the form of a man going out the door, but “didn’t know whether he killed anyone or not.” This recital defendant repeated to others later that night.
Defendant was nervous and excited and urged his brother-in-law to go back with him at once to see whether his brother had been killed and whether he had killed anyone with the shots he said he had fired. Moore took defendant’s gun from him and unloaded it, taking out a “New Club” shell. Moore then induced defendant to come into the house and then it appeared that he was fully dressed save that he was wearing no hat and that his shoes, though laced to the top, were untied.
There was also evidence tending to show that in order for the fatal charge to strike' deceased as it did it must have passed within an inch of the pillow on which defendant asserted he was lying when his brother was killed. There was other evidence for the State, how-' ever, tending to disprove this. The bedding and pillows on the bed on which deceased lay when killed were burned by one of appellant’s counsel, and the witness, Moore.
On cross-examination some of the State’s witnesses stated that defendant’s reputation for peace and quiet was good.
For defendant, J. L. Robinson testified that he and Moore publicly burned the bedding, he having been employed by defendant to clean up the premises for a tenant to whom defendant had leased them. He offered to let Moore have any of the household goods he might want. The bedding was old, dirty and bloody. The sole motive in burning it was ‘‘to get rid of it. ’ ’ There was no intent to destroy evidence. Witness said he “expected,” if he “had been prosecuting attorney, he would have taken care of those pillows,” adding, “I didn’t need them in my business.” Witness admitted he knew he was destroying “competent, legal evidence,” and added that he “was representing the other side,” being one of defendant’s counsel.
At the close of the evidence the court instructed the jury upon murder of the first degree, reasonable doubt and upon all other subjects to which the testimony was applicable. The cause was then submitted to the jury and they returned their verdict finding the defendant guilty of murder in the first degree and fixed his punishment at imprisonment in the penitentiary for life.
Timely motions for new trial and in arrest of judgment were filed and by the court taken up and overruled. Sentence and judgment were rendered in conformity to the verdict returned by the jury. From tbis •judgment defendant prosecuted this appeal and the record is now before us for consideration.
Defendant is not represented in this court; however, in compliance with the provisions of the statute, we have carefully analyzed the disclosures of the record, with the view of giving expression to our opinion as to whether or not there was any reversible error committed by the trial court in the disposition of this cause.
L
Prior to the trial and return of the verdict learned counsel for appellant did not challenge the sufficiency of the information in this cause; however, the motion in arrest of judgment does question the validity of the information. Directing our attention to this point it is sufficient to say that we have carefully analyzed the charge as embraced in the information, and in our opinion it charges every essential element of the offense of murder of the first degree, and the offense is charged in a form and manner that has repeatedly met the approval of this court. [State v. Evans, 158 Mo. 589; State v. Gray, 172 Mo. 430.]
II.
The sufficiency of the evidence as disclosed by the record to authorize the conviction of the defendant is challenged. Upon this proposition it is only necessary to say that we have indicated the nature and character of the testimony upon which this cause was submitted to the jury. While it may be said that the testimony tending to establish the guilt of the defendant is purely circumstantial, yet when it is fully considered, in our opinion, it fully supports the verdict as returned by the jury.
This cause is no exception to the general rule that in cases of this character there is usually a conflict in the evidence, and it is specially the province of the
Finding that there is substantial evidence which fully supports the conclusion as reached by the jury, we shall not undertake to retry this cause upon the disclosures of the record and undertake to determine whether the jury properly determined the cause upon the evidence. The trial court and the jury had opportunities óf determining the credibility of the witnesses and the weight to be attached to their testimony that are not afforded the appellate court, therefore we decline to interfere with the verdict on that ground. [State v. Miller, 188 Mo. l. c. 379; State v. McGee, 188 Mo. l. c. 409; State v. Smith, 190 Mo. l. c. 723].
III.
We have carefully considered the disclosures of the record as to the action of the court in the admission and rejection of testimony, and it is sufficient to say that we find there was no error along that line. The trial court seemed to have been very careful in the admission and rejection of evidence, and the assignment of error upon the action of the court in the admission and rejection of evidence must be ruled adversely to the appellant.
IV.
The motion for a new trial alleges as one of the grounds for such motion an improper cross-examination of the defendant while a witness upon the stand. We have examined the record upon that proposition
V.
It is complained in the motion for new trial that the court committed error in permitting counsel to ask questions of witness Fugate relative to certain letters. "We have examined the disclosures of the record upon that proposition and have reached the conclusion that the questions and answers so far as the letters were concerned did not develop, any evidence either for or against appellant. But aside from this, the court specifically directed the jury that they must not consider the- questions and answers concerning the letters. In our opinion the inquiry as to the letters did not in any way prejudice the rights of the defendant to a fair and impartial trial.
VI.
This brings us to the consideration of the instructions given by the court at the close of the evidence in this cause. We have carefully analyzed the declarations of law embraced in the instructions, and it is only necessary to say that in our opinion whatever error was committed was in favor of the defendant. The instructions as to motive, upon the presumption of innocence, upon circumstantial evidence and reasonable doubt and previous good character and as to statements of appellant, as well as the instruction upon the weight to be attached to appellant’s testimony, the credibility of witnesses and the definition of the terms
The instruction given in "behalf of the defendant as to the additional presumption of innocence arising from the relationship between appellant and deceased was unauthorized; however, that was an error in appellant’s favor of which he has no right to complain. [State v. Grant, 152 Mo. l. c. 68, 71; State v. Soper, 148 Mo. 217.]
VII.
There is no merit in the complaint in the motion for new trial that the court committed error in not giving other instructions covering the whole law of the case. Upon the facts as developed upon the trial of this cause if the defendant was guilty he was guilty of murder of the first degree, and the instructions were properly confined to that degree of the offense. Upon the facts the court would not have been justified in giving instructions upon any lower grades of the crime. [State v. Palmer, 161 Mo. l. c. 171; State v. Bond, 191 Mo. l. c. 563; State v. West, 202 Mo. l. c. 137; State v. McCarver, 194 Mo. l. c. 742.]
VIII.
We find that the motion for new trial complains at certain remarks of counsel for the State made during the argument of the case. It is sufficient to say of this complaint that the record fails to disclose anything to support this assignment outside of the motion for new trial; hence, it necessarily follows the com
IX.
It is finally insisted that the verdict as returned in this cause is the result of passion, prejudice and partiality. Accompanying the motion affidavits were filed tending to show that one of the jurors, Ed. Me-Christian, made statements in the presence of certain persons that “it was not the evidence given in court in the trial of the case that the jury convicted him on, but on what they heard outside of court, and that there was some evidence that they would not allow to be given in court.”
These affidavits in their last analysis amount to nothing more nor less than an effort to use the statement of a juror for the purpose of impeaching the verdict of a jury, and the trial court very properly did not in passing upon the motion attach any importance to these affidavits. It has been firmly settled in the jurisprudence of this State that a juror upon the panel trying a cause cannot make affidavits or statements impeaching the verdict as returned by the jury. [State v. Cooper, 85 Mo. l. c. 261; State v. Rush, 95 Mo. l. c. 205; State v. Sprague, 149 Mo. l. c. 424, 425.] .
X.
We have given expression to our views upon the complaints as disclosed by the record, and, as before stated, we have not been favored by any suggestions on the part of the appellant as to the complaints made in the motion for new trial; yet this case being one of such a serious character we have given most careful attention to the disclosures embraced in the record and have reached the conclusion that there was no error committed by the court in the trial of this cause which in any way prejudiced the rights of the defendant to a fair and impartial trial.