191 Mo. 617 | Mo. | 1905
This cause is here on appeal from a judgment of conviction in the circuit court of Pemiscot county of murder in the second degree. This prosecution is based upon an information filed by the prosecuting attorney of Pemiscot county charging George and Clifford Woodward with murder in the second degree. The correctness and validity of the information being challenged, it is well to reproduce it. It is as follows:
“In the circuit court of Pemiscot county, Missouri, To February term, 1904.
“State of Missouri, County of Pemiscot, ss.
“State of Missouri
v.
“George Woodward and Clifford Woodward.
“L. L. Collins, prosecuting attorney, within and for the county of Pemiscot and State of Missouri, upon his official oath informs the court, that George Woodward and Clifford Woodward, late of the county of Pemiscot and State of Missouri, on the 16th day of January, 1904, at the county of Pemiscot and State of Missouri, did then and there in and upon the body of one Ed. Pedigo, then and there being, unlawfully, wilfully, feloniously, premeditatedly, on purpose and of their malice aforethought make an assault, and with a certain dangerous and deadly weapon, to-wit, a club,
“ L. L. Collins,
“Prosecuting Attorney.
“L. L. Collins, prosecuting attorney, within and for Pemiscot county, Missouri, being duly sworn upon his oath says that the facts stated in the above and foregoing information are true according to his best knowledge, information and belief.
“L. L. Collins.
“ J. W. Green,
“Clerk of the Circuit Court.
“Harvey E. Averill, D. C.”
Upon the trial the State’s evidence tended to show that deceased was the proprietor of a pool hall, on one side of which he had a lunch counter.' This pool hall was situated in the rear of George Myrick’s. saloon in the town of Steele, in Pemiscot county; and between the saloon and the pool room was a small room called the “stove room.” In the rear and to the side of the pool room was a small back yard, known as the bull pen. There was evidence to the effect that deceased and defendant had trouble on two former occasions, once at another pool room in Steele, and once when defendant and the Moore boy were about to have a fight during a charivari. When deceased prevented this fight, the defendant threatened deceased; this was some two weeks before the final difficulty. Deceased was sitting in the stove room about seven o’clock on the night of the difficulty, talking to some one, when defendant came into the saloon. There was evidence to show that one, perhaps both of them, had been drinking some, but neither one was intoxicated. As he came in the front door, defendant said to Charles Johnson, the bartender, “Is there any God-damn-son-of-bitch in here that wants to fight?” To this remark, the bartender replied that he did not see any son-of-a-bitch in there, that he might go into the back room. Defendant walked straight into the stove room, where he at once engaged in a controversy with deceased about some games of pool that deceased said he had played and had not paid for; deceased asked him not to play any more till he had paid what he owed. Defendant said that he was going to play anyhow, and started into the pool room. A short time prior to this deceased and de-.
On behalf of the defendant, the evidence tended to show that he was nineteen years old, and deceased thirty-one; and there was considerable difference in their weight. That he and deceased were good friends, and only had one difficulty, and that was some two weeks before at a charivari, when deceased interfered and prevented defendant from fighting a son of M. Moore. That defendant had loaned his pistol to deceased some days before, and saw deceased with his pistol in his hand about one hour before the difficulty, when deceased was aiding the town marshal in taking two drunken men to the city jail. That when defendant came into the saloon, he walked straight to the stove-room, where he met deceased and said, “Ain’t we having a good time to-night, Ed?” That he referred to the fact that deceased had recently assisted in arresting two disorderly men. That deceased replied, “I don’t want you to talk to me.” Defendant asked why, and deceased said he had done him harm and that he was going to whip defendant. With that deceased took hold of defendant by the breast and shoved him back into the pool room. Defendant then sáid, “No use to whip me in here in your own house, you got all the advantage, you are a big man, I am nothing but a boy.” To which deceased replied, “That don’t matter a damn, I am man enough to whip you, and I am going to do it; we will go out to the bull pen, there neither one of us has the advantage of the law.” With that, deceased took defendant by the arm, shoved defendant out and shut the door behind. Outside, deceased began cursing defendant and striking him, when defendant said, “Ed, you are mad.” To which deceased replied, “Yes, by God, I am mad.” After striking defendant on the neck and knocking him off of the plank walk twice, George Woodward made a lick or two at deceased.
At the close of the evidence the court instructed the jury upon murder of the second and manslaughter of the fourth degrees, upon reasonable doubt and self-defense. The complaints of appellant as to instructions will be given attention in the course of the opinion. The cause was submitted to the jury and they returned a verdict of guilty of murder of the second degree, assessing defendant’s punishment at imprisonment in the penitentiary for a term of ten years. Judgment of sentence in accordance with the verdict was entered of record. Defendant’s motions for new trial and in arrest of judgment being overruled, he in due time and form prosecuted his appeal to this court, and the record is now before us for review.
OPINION.
Numerous error’s are assigned as a basis for the reversal of this judgment. We will give the complaints of appellant such consideration as their importance and the administration of justice demand. The most vital proposition with which we are confronted in this cause is the challenge made by the appellant to the sufficiency of the information charging the offense of which the defendant was convicted. It is fundamental that the pleading in a criminal case, charging murder, must charge that the homicidal act itself was done feloniously. In other words, that the mortal wound inflicted must be charged to have been feloniously done,
In State v. Green, 111 Mo. 585, this court had in judgment the sufficiency of the indictment in that cause for murder, and in discussing the essential requisites of an indictment for so grave an offense, Gantt, J., speaking for the court, said: “This court in State v. Blan, 69 Mo. 317, held that it was not the purpose or design of our statute of jeofails to change our entire system of criminal practice, and said ‘the ancient forms of proceeding have been retained with specific modifications.’ It is still necessary to allege every substantive fact which the State must prove, in order that the defendant may know ‘the nature and cause of the accusation’ against him. Measured by all the approved precedents, this indictment is insufficient, in that it fails to aver, after alleging that the defendant shot and discharged the pistol at Beaumont, ‘that,
In the recent case of State v. Williams, 184 Mo. 261, the cases herein referred to were all cited approvingly, and it was said in that case, in treating of the essential feature of an indictment for murder, that, “In all cases where the common law prevails it has always been held necessary to allege the striking or wounding to have been done feloniously, premeditatedly and of malice aforethought. It is not necessary to repeat those words immediately before the charge of striking or wounding where the technical words feloniously, premeditatedly, deliberately and of malice aforethought have been used in charging the assault and the words ‘then and there’ connect these words with the charge of the fatal stroke or wounding, for in such cases the words feloniously, etc., will run through the subsequent allegations and thus connect them with the mortal stroke to which they are essential. [State v. Herrell, 97 Mo. 108 and 109.] But where, as in this case, the words ‘then and there’ are omitted, it has been held the indictment is bad. [State v. Feaster, 25 Mo. 324; State v. Herrell, 97 Mo. 105.] And so in State v. Arnewine, 126 Mo. 567, the charge was, ‘did make an assault, and with a certain pistol, commonly called a revolver, loaded and charged with gunpowder and leaden balls, which he, the said William Arnewine, then and there wilfully, feloniously, deliberately, premeditatedly, on purpose, and of his malice aforethought, did shoot and discharge at, to, against, in and upon the body of him, the. said George Keeton, giving to him, the said George Keeton, then and there, with the pistol loaded and charged, had and held, shot off and discharged as aforesaid, in and upon the left side
Measured by the rules of pleading in criminal cases, as well as by all the approved precedents, the information in this cause now in judgment before us must be held insufficient, in that it fails to allege that the homicidal act, the fatal stroke, was done feloniously, wilfully, deliberately, premeditatedly, and of his malice aforethought; nor is the wounding in any way connected with the previous allegations of those essential terms in charging the assault, by the use of the words “then and there” or equivalent terms. The charge in this information may thus be briefly stated: “That the defendant unlawfully, wilfully, feloniously, premeditatedly, on purpose and of his malice aforethought, did strike and beat him, the said Ed. Pedigo, at and upon the right side of the head of him, the said Ed. Pedigo, with the club aforesaid, and inflicting and giving to him, the said Ed. Pedigo, in and on the right side of the head of him, the said Ed. Pedigo, one mortal wound,” etc. We might stop here to inquire with what instrument was the mortal wound given. It correctly charges the manner of the assault by striking and beating the said Ed. Pedigo at and upon the right side of his head with the club aforesaid; then follows the charge connected by the conjunction “and” inflicting and giving to said Pedigo one mortal wound.
It is left to conjecture under the form of this charge, whether the mortal wound was inflicted and given by the club, or whether, in addition to beating and striking him with the club aforesaid, he also, by some other means, inflicted and gave the mortal wound.
The conclusion reached upon this question as to the sufficiency of the information, renders it unnecessary to discuss at length the other assignment of errors on the part of the appellant. As this case must be retried in the event of the filing of a proper information, it is not inappropriate to at least briefly indicate our views upon some of the questions presented.
Counsel for appellant insist that the court erred in refusing to sustain appellant’s objectipn to leading questions propounded to the witness Arthur Curry. It is sufficient to say of this complaint that the propounding of leading questions in the manner of examining witnesses is always a matter within the sound discretion of the trial court. In the trial of causes it frequently occurs that one side or the other must introduce unwilling or unfriendly witnesses, and in the examination of such witnesses the court in the exercise of a proper discretion may permit the asking of leading questions and thereby commit no error. [State v. Napper, 141 Mo. 401.]
It is insisted that the court erred in permitting the State to prove the good reputation of the deceased. This testimony under the rules of evidence could only be admissible to rebut testimony elicited by the appellant affecting the reputation of the deceased. Unless the reputation of the deceased was put in issue by the appellant, then this testimony was clearly inadmissible. The record in this cause discloses that the defendant, upon cross-examination of witness Charles Johnson, for the State, did undertake to elicit testimony which reflected upon the good reputation of the deceased. Defendant having opened up the subject of the good reputation of the deceased, it was not error to permit the State to rebut any testimony offered by the defendant upon that subject. However, upon a retrial of this cause, unless the reputation of the de
The record discloses some testimony of conversations and acts between George, the brother of the defendant, and one of the witnesses, in respect to cooking some eggs, in the restaurant of deceased, in the absence of the defendant. "We are of the opinion that this testimony should be excluded. "We are unable to see how it tends to prove or disprove any of the issues presented by the information against the defendant on trial. It is urged by appellant that the admission of testimony tending to show that a brother of the defendant, George, who is jointly indicted with him, had an open knife during the fatal difficulty, and that a Mr. Moore, who was present at the difficulty, was cut on the knuckle. It will suffice to say upon this contention that. every thing occurring contemporaneously with the main difficulty was a part of the res gestae, and there was no error in the admission of such evidence.
It is also insisted that the court erred in the admission of testimony as to the general reputation of the defendant and his brother George for morality, and also in the admission of testimony tending to show that defendant had previously been convicted of a criminal offense before a justice of the peace. It was ruled by this court in State v. May, 142 Mo. l. c. 150, that the defendants having offered themselves as witnesses, it was competent under our rulings to attack their general moral character. [State v. Grant, 79 Mo. 113, and cases cited.] A similar ruling was made in State v. Evans, 158 Mo. l. c. 609. As to the evidence of prior convictions of criminal offenses, defendant having testified in his own behalf, it was competent to show that fact in a legitimate way, in order to affect his credibility; however, it should be shown by competent evidence. If the prior convictions were denied by the defendant, the record of the justice of the peace, or the court wherein such convictions were had, should
There is also some complaint in respect to the hypothetical questions propounded to Dr. Conrad. It is sufficient to say that the rules of law in relation to hypothetical questions are well settled, and as this case is to be retried, we indulge the presumption that the trial court will have such question conform to the well-settled rules of evidence upon that subject.
Complaint is also urged that the court improperly instructed the jury. It is sufficient to say of this complaint of error that it is without merit. The instruction upon murder of the second degree required the jury to find every essential element of that offense, and adding to the instruction, “without deliberation,” did not render it objectionable; however, if the court, upon another trial, should use the terms in the instruction, “without deliberation,” it would be appropriate to properly define “deliberation.” Instructing the jury that defendant had the right to defend himself or his brother, did not constitute error. We are unable to conceive, if defendant was justified, how the mere fact of extending his right of self-defense to that of his brother, could in any way prejudice his rights. If there is no testimony tending to show that he was acting in defense of both himself and his brother, then the instruction should not be given. Voluntary drunkenness furnishes no excuse or justification for the commission of crime, and if there is testimony upon that subject, it is not error for the court to so declare the law.
The record in this cause is similar to the one in the case of State v. Spivey, supra, abounding with complaints on part of appellant of the action and conduct of the prosecuting attorney during the progress of the trial of this cause. This case doubtless will be retried,
We have thus given expression to our views upon the record before us, which results in the conclusion that the judgment should be reversed and the cause remanded in order that a new information or indictment may be preferred and a trial had in accordance with the provisions of law.