THE STATE v. ROSCOE F. WARREN, Appellant
Court en Banc
November 25, 1930
33 S. W. (2d) 125
The judgment of the trial court is affirmed and the case is transferred to the court en banc. All concur.
PER CURIAM: - The foregoing opinion of BLAIR, J., in Division Two, is adopted as the opinion of the Court en Banc. Ragland, C. J., Blair, Atwood, Gantt, Frank and White, JJ., concur.
The record establishes that this case was here previously on appeal, and that it was reversed and remanded for a new trial (State v. Warren, 317 Mo. 843, 297 S. W. 397). Consequently, we refer to the opinion of BLAIR, J., for a detailed statement of the facts. However, as the errors now assigned are unlike the errors assigned on the prior appeal, a plenary statement of the facts is unnecessary.
The evidence adduced on the part of the State warrants the finding that, on October 13, 1924, in an attorney‘s office in the Scarritt Building, in Kansas City, Jackson County, during the reading of a resolution by deceased formulated by the trustees of the Mutual Rocky Mountain Club, which resolution was designed to oust defendant as general manager of the club, and which stated that defendant‘s management of the club had been unprofitable, wasteful and extravagant, and that defendant, as agent and general manager of said club, had diverted assets, funds and properties of said club to his own personal use, defendant shot and killed John C. Deskin. Defendant was the organizer of the club, and Deskin, one Towner and another were the trustees appointed by the common-law-trust organization agreement. Later one Housh became a trustee in place and stead of the unnamed trustee. The membership of the club was limited to Masons. The purpose of the club was to maintain and operate hunting lodges in the West, and it acquired, among others, the property known as Pahaska Tepee, in Wyoming, near Yellowstone Park, the former hunting lodge of “Buffalo Bill.”
It seems that one Clubb had loaned the Rocky Mountain organization the sum of $25,000. Defendant, for the club, borrowed about $11,000 from his cousin. In addition, club memberships were valued $150, and defendant had sold about four hundred at that price. Some time prior to the killing of Deskin, Housh, in a letter written to a member of the club, stated that defendant was guilty of embezzlement of the club funds. Later Clubb, Housh and the other trustees decided to have an audit of the affairs and books of the club. On Monday morning, October 6, 1924, the above parties with defendant and the club‘s attorney met at the office of the club. As the audit was not completed, the meeting adjourned until the afternoon, when it was furnished. Nearly all of the parties procured attorneys to represent
I. Defendant‘s son, Neale, testified for the defense, and denied on cross-examination that, on the morning of October 13, 1924, prior to the homicide, he said anything to his father relative to carrying a loaded revolver, or remonstrated with him or commented on it, or undertook to disarm him on that morning. He stated that he asked his father for a gun, and he gave it to him. He denied any physical force. He further denied that he disarmed his father that morning, or that his
In rebuttal, the State offered Judge Smith as a witness, who testified that Neale Warren verbally stated to him that he had disarmed his father the morning of October 13, 1924, prior to the shooting of John Deskin; that Neale hid the gun and later found it had disappeared, and that he later overtook his father at Barnett‘s office.
The testimony of Judge Smith, relating to the statement made to him by Neale Warren, was not original or substantive proof of the actions of defendant, but it was hearsay. The testimony of Smith was admissible, however, to impeach Neale Warren. Consequently, the effect of Smith‘s testimony should have been limited to such purpose by an instruction. Defendant offered such an instruction, reading: “The court instructs the jury that you must not consider any verbal or written statement which you may believe from the evidence was made by any witness in this case, outside of court, and which you may find inconsistent with such witness‘s testimony on the witness stand, as tending in any way to establish the truth of any element of the offense charged in the indictment.”
We think that the instruction, or one similar in import, should have been given, and that the trial court therefore erred. The jury should have been told explicitly by a proper instruction, as defendant offered one on the concept, that such evidence could not be considered by them as substantive evidence tending to show defendant guilty of any crime. On this subject, in State v. Thomas and Allen Swain, 68 Mo. 605, l. c. 616, the court say: “The jury should have been very pointedly told that the testimony of Archer, so far as being evidence against the defendants, was to be entirely excluded from their consideration; that its only purpose was to impeach the statement of Curry, and could have no other effect whatsoever. The instruction asked by defendants on this point was altogether unobjectionable, and should have been given.” [State v. Little, 228 Mo. 273, 128 S. W. 971; State v. Bersch, 276 Mo. 397, l. c. 416, 207 S. W. 809; Chawkley v. Railroad, 317 Mo. 782, l. c. 801, 297 S. W. 20; 16 C. J. 855; 14 R. C. L. 791-2.] A reading of the instruction offered in this case shows nothing objectionable in it, although we think that, for the purpose intended,
II. An instruction for the State, involving insanity, in part reads: “Wherefore the court instructs the jury that if they find and believe from the evidence that at the time he committed the act charged in the indictment the defendant was so perverted and deranged in one or more of the mental and moral faculties as to be incapable of understanding at the moment he killed John C. Deskin as charged against him,” etc.
Defendant did not take the stand nor testify, nor did he judicially admit that he shot and killed Deskin. It is true that the testimony of some of his witnesses tended to show that he did shoot and kill Deskin. It is also true that he submitted the defense of insanity. Notwithstanding these circumstances, all of the instructions predicating a verdict should have required a finding that defendant shot and killed Deskin (State v. Jordan, 306 Mo. 3, 268 S. W. 64), although in view of the evidence, we do not deem it necessary to hold the instruction erroneous on that ground.
However, by the use of the phrases in the instruction, “at the time he committed the act charged in the indictment,” and “at the moment he killed John C. Deskin as charged against him,” the jury were told that defendant, if he was not insane, was guilty of murder in the first degree, for the indictment charged him with murder in that degree only. The use of the phrases in the instruction constituted error (State v. Jordan, supra), for the evidence justified an instruction on murder in the second degree. The instruction assumed that defendant, if guilty, was guilty of murder in the first degree. [State v. Hersh, 296 S. W. 433.] It is said that this instruction was approved in State v. Duestrow, 137 Mo. 44. 38 S. W. 554, 39 S. W. 266, but a reading of that case advises that the instructions are not identical and that the words “as charged against him” are not found in the Duestrow case instruction.
III. Instruction 10 is said to be erroneous. It reads: “The court instructs the jury that on the question of the sanity or insanity of
This instruction is subject to the same criticism as the one treated in the preceding paragraph of this opinion. It assumes that defendant, if not insane, was guilty of the crime charged, to-wit, first degree murder. [State v. Meininger, 306 Mo. 675, 268 S. W. 71; State v. Mills, 272 Mo. 526, 199 S. W. 131,]
IV. Instruction S-11 directs a verdict of guilty upon a finding that defendant committed the crime as charged, unless the jury found that the defendant was insane or acted in self-defense, as defined in other instructions. The crime charged was murder in the first degree. This instruction directed the jury to find defendant guilty of murder in the first degree, if he was not insane or if he did not act in self-defense, thus directing the jury to cast aside and to ignore other instructions based on evidence tending to show that defendant was guilty of lesser degrees of felonious homicide than murder in the first degree.
This instruction also follows the form set forth in State v. Duestrow, supra. In the Duestrow case, however, the verdicts were predicated on first degree murder or acquittal only. In State v. Baker, 246 Mo. 357, 152 S. W. 46, the instruction on this subject also followed the Duestrow case, but seemingly certain changes were made in the verbiage of the instruction so as to permit the jury to consider the various grades of homicide as developed by the evidence. In any event, we think the instruction in this case constituted error.
V. Instruction S-12 is challenged. It peremptorily tells the jury that if they find defendant sane and find that he did not act in self-defense, you will find the defendant guilty as charged in the information. We need not repeat what we have previously herein said on this subject. Suffice it to say that, unless they acquitted defendant, they were directed to find him guilty of murder in the first degree. This instruction also ignored other instructions authorizing the jury to find him guilty of a lesser grade of homicide. We are unable to elaborate upon the discussion or reasoning on this subject found in State v. Speyer, 207 Mo. 540, 106 S. W. 505, where the identical question was determined. [See also State v. Davis, 12 S. W. (2d) 426.]
We think the instruction constituted prejudicial error. By the phrase, and are not conclusive on the jury, which refers to the opinions of medical experts on the question of insanity, the jury were told in effect that they were at liberty to consider or to refuse to consider the testimony of medical experts, notwithstanding the instruction told them that the testimony of physicians and experts is to be taken or considered like the evidence of other witnesses, and that, on questions of insanity, it was subject to the same rule of credit as the testimony of other witnesses. The phrase referred to is probably correct as an abstract proposition of law, but, as it carries the idea of “may,” it is dubious, and probably confused the jury. If it did so, it was prejudicial. [High v. Railroad, 318 Mo. 444, 300 S. W. 1102]
Moreover, the instruction told the jury that the opinions of medical experts on questions of insanity . . . are not conclusive on the jury. Defendant‘s medical expert was the only expert that testified that defendant was insane. The State‘s experts testified that defendant was sane. It may be hypercritical, but if comment and caution are to be indulged in, the instruction should leave no room for doubt as to meaning that it referred to experts testifying as to both the insanity and sanity of defendant. However, the foregoing discussion is aside the question, for this court en banc has lately ruled that instructions of this nature are erroneous as a comment on the evidence. [Scanlon v. Kansas City, 325 Mo. 125, 28 S. W. (2d) 84. See also Spencer v. Railroad, 317 Mo. 492, 297 S. W. 353.]
VII. Defendant contends that the evidence did not justify an instruction relative to first degree murder. It is necessary, therefore, that we summarize the evidence in that regard.
It is the theory of defendant that his acts and the surrounding facts and circumstances, immediately preceding the shooting of Deskin, show that violent passion was engendered in defendant by being provoked to it,
However, there were other facts and circumstances in evidence which permitted the jury to find the element of deliberation, necessary to convict one of first degree murder. They may be thus epitomized. To the time of the audit, Deskin and defendant appeared to be warm friends and worked together, but, during the audit, Deskin voted in the meetings of the club in harmony with those opposed to the management of defendant. One Bales testified that, a few days previous to the homicide, Deskin was playing pool at the “Ivanhoe Lodge Masonic Building,” when defendant entered. Deskin, upon observing defendant and without saying a word, placed his cue in the rack and departed. He then heard defendant say, “I will get that fellow yet,” but the remark was not directed to the witness, just generally. Witness knew Deskin and Warren only by sight.
Witness Elder, a detective, interviewed defendant and testified, in substance, that he did not then know the name of the man shot, and that he asked defendant why he shot this man, and defendant replied that they had been hounding him and accusing him of swindling them out of $65,000 or $70,000, and that they were going to get his job and he meant to get even; that defendant then asked “whether this man was dead yet,” and witness answered, “I think he is.” Defendant then said, “Well, if he isn‘t, let me go down and finish him up.” Witness Elder admitted that in Kansas he pleaded guilty to an offense under the name of William Walker, alias Bradley.
A witness for defendant, a Mr. Weiss, testified, on cross-examination, that in October, 1924, defendant said to him that he had received a telegram from his cousin, J. B. Warren, in which he (defendant) was accused by J. B. Warren of having gotten hold of property in an illegal manner, and that he knew that his cousin was trying to
We need not discuss the separate items in the foregoing summary or determine that any separate item was sufficient in itself to develop an inference of deliberation. We say nothing more in that regard than that the proof adduced in the record was sufficient to authorize an instruction on first degree murder. It follows that the court did not err in giving to the jury an instruction on murder in the first degree.
VIII. An assignment of error reads: “The court erred in failing to define the term ‘just provocation’ as that term is used in Instruction S-1, and in failing to instruct the jury as to the provocation engendered by insults, opprobrious epithets and insulting gestures which will reduce a killing from first to second degree murder.”
The record shows that the trial court submitted the usual instructions as to first degree and second degree murder, which seem unassailable. The court also defined deliberation, and in doing so said, “but it means an intent to kill executed by the defendant in a cool state of the blood in furtherance of a formed design to gratify a feeling of revenge or to accomplish some other unlawful purpose, and not under the influence of a violent passion suddenly aroused by some lawful or just cause or provocation.” It is “just provocation,” as used in this instruction, that defendant submits should be defined. The jury were advised with respect to the elements of murder in both the first and second degrees. The defendant did not offer instructions attempting to define “just provocation,” and the “provocation engendered by insults, opprobrious epithets and insulting gestures.” The use of the words, “lawful or just cause or provocation,” was invited by defendant, for he uses the words, “passion caused by lawful provocation,” in his Instruction D-5 given by the court. [State v. Tedder, 294 Mo. 390, 242 S. W. 889.]
However, in State v. Ballance, 207 Mo. 607, l. c. 617, 106 S. W. 60, the court said that the concept of an instruction was correct which advised the jury, “that if the defendant shot and killed Copeland, while he, the defendant, was in a violent passion suddenly aroused by opprobrious epithets or abusive language then such killing was not deliberate, but although such killing was not deliberate, yet if it was done wilfully, premeditatedly and of malice aforethought as those terms had been already explained in the other instructions, the killing would be murder in the second degree.” The court could with propriety have given such an instruction. Where the facts justify such an instruction, it is the duty of the court to give it, when requested in writing.
As prejudicial error obtains, the judgment is reversed and the cause remanded. Henwood and Cooley, CC., concur.
PER CURIAM: - This cause coming into Court en Banc, the foregoing opinion of DAVIS, C., in Division Two, is adopted as the decision of the court. All of the judges concur.