259 Mo. 427 | Mo. | 1914
At the January term, 1913, of the criminal court of Jackson county, the defendant was convicted of murder in the second degree, for the killing of Martha Kimball with a pistol, and having had assessed against him as punishment therefor, imprisonment in the penitentiary for a term of ninety-nine years, has, after the usual motions, appealed to this court.
On the part of the State the testimony showed that on the evening of December 26, 1912, the deceased and another colored woman by the name of
One witness for the State testified that when defendant, Walter Snead and Johnson left the house of deceased the question was asked by one of them, “What did you lose?” also that some remark was made by one of them about a gun. While at the house
"When arrested on the night of December 30th, following the homicide, defendant gave his name as “Will Davis;” he also stated that he lost the pistol in getting over the fence at Fifth and Gillis streets. On cross-examination of the officers making the arrest of defendant they stated that in the conversation with defendant in which he told them of the killing, defendant said that deceased had stolen some money from Ms cousin Walter Snead and when he asked her about it and asked her to give it back, she drew a knife and attempted to cut him, and he then shot her.
The State also offered testimony showing that following Ms arrest defendant; made a statement with reference to the shooting. This statement was offered in evidence by the State but later withdrawn.
Defendant did not testify in his own behalf, neither did he offer any testimony.
The court instructed the jury on murder in the second degree, manslaughter in the fourth degree, the presumption of innocence, reasonable doubt, self-defense and the credibility of witnesses.
Defendant is not represented here by counsel. Nevertheless, as in duty bound, the statute SO' admonishing (Sec. 5312, R. S. 1909; State v. Maggard, 250 Mo. 335), we have carefully examined all matters of alleged error subject to review upon the record, as well as such as are properly preserved for our review in the bill of exceptions. Turning to the motion for a new trial we note that defendant urges' there' eight assignments of error, covering those matters which in practice have become indigenous to a motion for a new trial and which have been facetiously denominated “the usual errors of the court,” as well as others below specifically mentioned.
II. In the course of the argument of the case by counsel to the jury, the following colloquy occurred:
“Mr. Curtin (counsel for the State): Did Walter Snead lose any money? What would Walter Snead say about this killing if he was here? What would he say about this killing if he was here?
“Mr. Kimbrell: We object to that as improper.
“Mr. Curtin: Tou argued that he lost his money.
"The Court: There is no evidence as to what he would say, and the prosecuting attorney cannot indulge in surmising: as to what he might say.
“Mr. Curtin (continuing).- Mr. Kimbrell says he lost some money—
“Tht Court: There is no evidence that he lost any money or didn’t lose any money.
“Mr. Curtin (continuing): He isn’t here—
“Mr. Kimbrell: We object to the remark of the court.
“The Court: Save your exception.
“Mr. Kimbrell: Exception.
*433 “Mr. Curtin (continuing): I am answering your argument, Mr. Kimbrell. ’ ’
Also, at the conclusion of Mr. Curtin’s argument the court made the following explanation of his remark :
“The Court: The remark of the court there is no evidence in this case whether this cousin of Sneed lost any money, was improper. There is no evidence except the statement by the defendant to the officers, which has been argued to the jury. ’ ’
The argument to the jury of learned counsel for the defendant is set out in full in the record. It conclusively shows that counsel had, as contended by the prosecuting attorney, said much as to the alleged loss of money by Walter Snead, and much by inference as well as by direct assertion, charging the dead woman with having stolen this money. The arguments devoted by counsel to this matter of the alleged theft ef the money by the dead woman cover almost two typewritten pages of. the record. What the prosecuting attorney said in argument in reply relative to the lost money and which we show in the excerpt, was fully warranted upon the theory that it was a fair answer to the argument of defendant’s counsel; what he said as to the probable testimony of Walter Snead, was out of the record, but it was promptly and properly so declared by the court. Even if this were not so, defendant saved no exceptions whatever to this part of the triangular controversy. The unfortunate phase,' and that for which we would reverse this case if the matter were vital otherwise, is the evidently inadvertent remark of the learned trial judge, wherein he says that “there is no evidence that he lost any money, or didn’t lose any money. ” Later, in the language set out above, he advised the jury that his remark was improper.
The facts in evidence were ample to sustain the verdict. The punishment inflicted was no more than the sodden brutishness of this uncalled-for murder richly merited. Let the judgment be affirmed.