State v. Bobbitt

Decision Date10 April 1908
Citation215 Mo. 10,114 S.W. 511
PartiesSTATE v. BOBBITT.
CourtMissouri Supreme Court

1. CRIMINAL LAW (§ 1092)BILL OF EXCEPTIONS —SETTLEMENT—PRO TEM. JUDGE—JURISDICTION.

Rev. St. 1899, § 2597 (Ann. St. 1906, p. 1538), provides that, where a judge of another circuit is called to hold court for the resident judge, the judge pro tem, has all the powers and may perform the duties of a circuit judge at a regular term of the court, etc. Held, that where a pro tem. judge was called to hold a term of court at which accused was tried and convicted, and in vacation extended the time for filing a bill of exceptions, he had jurisdiction within the time so fixed to sign and allow the bill.

2. INDICTMENT AND INFORMATION (§ 189) — DEGREES OF OFFENSE—ELECTION.

Where accused is indicted for murder in the first degree, the state at its election may waive that degree on the trial and continue the prosecution for murder in the second degree.

3. HOMICIDE (§ 142)—FIRST-DEGREE MURDER — ISSUES AND PROOF.

Under an indictment for murder in the first degree in common form, the prosecution may prove a killing by poison, by lying in wait, or with intent to commit arson, etc., as well as a willful, deliberate, and premeditated killing.

4. HOMICIDE (§ 21) —DEGREES OF MURDER.

The statute dividing murder into degrees is a statute of classification and not of definition, so that no homicide can be murder in either degree which is not murder at common law.

5. HOMICIDE (§ 18) — MURDER AND PERPETRATION OF ARSON.

A homicide committed in the perpetration of arson is not a distinct offense, but is but one of the methods of committing murder in the first degree.

6. HOMICIDE (§ 342)—DEGREES OF MURDER— CONVICTION OF LOWER DEGREE—PREJUDICE.

Rev. St. 1899, § 2369 (Ann. St. 1906, p. 1457), provides that any person found guilty of murder in the second degree shall be punished according to the verdict though the evidence shows a higher degree of homicide, and section 2535 (Ann. St. 1906, p. 1509) declares that no indictment shall be invalid, nor shall the trial, judgment, or other proceedings be affected, because the evidence shows a higher degree of the offense than that of which the accused was convicted. Held that, where accused was convicted of murder in the second degree and sentenced accordingly, he could not object on appeal, for want of prejudice, that the evidence only showed murder in the first degree.

7. HOMICIDE (§ 235)—CONSPIRACY—EVIDENCE.

Evidence held to show that deceased was killed in the carrying out of a conspiracy to burn his dwelling house or to kill him, and that defendant was a party to the conspiracy and therefore guilty of murder, though not personally present when deceased was killed.

8. HOMICIDE (§ 308)—SECOND-DEGREE MURDER —INSTRUCTIONS.

Under Rev. St. 1899, § 2369 (Ann. St. 1906, p. 1457), providing that any person found guilty of murder in the second degree shall be punished accordingly, though the evidence showed a higher degree of homicide, an instruction that, if the jury found facts amounting to murder in the first degree, they could only convict defendant of murder in the second degree, for which offense he was tried, was not objectionable because it did not embrace the essential elements of murder in the second degree.

9. HOMICIDE (§ 340) — APPEAL—INSTRUCTIONS —PREJUDICE.

Where accused was tried for murder in the second degree under an indictment for murder in the first degree, he was not prejudiced by an instruction that, if the jury found facts which amounted to murder in the first degree, they should only convict defendant of murder in the second degree.

10. HOMICIDE (§ 286) — SECOND-DEGREE MURDER —TERMS—DEFINITION.

In a prosecution for murder in the second degree, the court did not err in omitting to define "willfully," "feloniously," "premeditatedly," and "malice aforethought," the jury not being required to find either deliberation, premeditation, or malice aforethought.

11. CRIMINAL LAW (§ 780) — INSTRUCTIONS — TESTIMONY OF ACCOMPLICE.

An instruction that the testimony of an accomplice, while admissible, must be corroborated by some other witness or witnesses not implicated in the crime as to facts connecting defendant with its commission, and should be received with great caution, but if the jury were satisfied that the accomplice's testimony was true, and that such testimony was sufficient to establish defendant's guilt, then they could convict on it alone, was proper, and not objectionable for the court's failure to define "corroborate."

12. CRIMINAL LAW (§ 829) — INSTRUCTIONS — REFUSAL.

It is not error to refuse a request to charge on a subject fully covered by the instructions of the court.

13. CRIMINAL LAW (§ 755½) — INSTRUCTIONS —FORM—COMMENT ON EVIDENCE.

A request to charge that, if any of the prosecution's witnesses were induced or influenced to become witnesses by any promise or intimation of immunity from punishment or hope that it would go easier with them in case of their testifying, the jury should consider that fact in determining the weight which should be given to their testimony so obtained and given under the influence of such promise or hope, and that such testimony should be received with great caution and scrutinized with great care, was properly refused as a comment on the testimony.

14. CRIMINAL LAW (§ 784)—INSTRUCTIONS— CIRCUMSTANTIAL EVIDENCE.

Where the state did not rely on circumstantial evidence alone to obtain a conviction, the court did not err in refusing an instruction on such subject.

15. CRIMINAL LAW (§ 761) — INSTRUCTIONS — FORM—MOTIVE.

A request to charge that the absence of any probable motive for the commission of the crime was a circumstance which should be considered in defendant's favor was properly refused as assuming an absence of a probable motive.

16. CRIMINAL LAW (§ 22)—MOTIVE—ELEMENT OF OFFENSE.

A person is not to be acquitted of an offense merely because he had no discoverable motive.

17. JURY (§ 83) — SELECTION—COMPETENT JURORS.

A person accused of homicide is entitled to a full and competent panel of 30 jurors before making his peremptory challenges.

18. JURY (§ 129)—CHALLENGES.

Challenge of a juror for cause, failing to specify any ground of disqualification, is ineffectual.

19. JURY (§ 103) — DISQUALIFICATION—NEWSPAPER REPORTS.

Rev. St. 1899, § 2616 (Ann. St. 1906, p. 1550), provides that it shall be a good cause of challenge to a juror that he has formed or delivered an opinion on the issue or on any material fact to be tried, but if that opinion is founded on rumor and newspaper reports, and is not such as to bias the juror's mind, he may be sworn. Held, that jurors who had read accounts of the homicide in the public prints, including what purported to be an unsworn confession of one of the persons implicated, and who from this had formed an expressed opinion, but who were able, independently thereof, to render a verdict in accordance with the law and the evidence, were not disqualified.

Appeal from Circuit Court, Howard County; Samuel C. Davis, Judge.

J. E. Bobbitt was convicted of murder in the second degree, and he appeals. Affirmed.

O. S. Barton and Sam C. Major, for appellant. Herbert S. Hadley, Atty. Gen., and F. G. Ferris, Asst. Atty. Gen., for the State.

GANTT, J.

On April 4, 1907, at the April term of the circuit court of Howard county, the prosecuting attorney filed the following information in said court:

"State of Missouri, County of Howard ss.: In the Circuit Court of Howard County, April Term, A. D. 1907. Now comes A. W. Walker, prosecuting attorney for the state of Missouri, in and for the body of the county of Howard, and upon his official oath informs the court that J. E. Bobbitt, Robert Goodman and Everett Bobbitt, on the 19th day of March, 1907, at the county of Howard, state of Missouri, in and upon one Franklin Smith then and there being, feloniously, willfully, deliberately, premeditatedly, on purpose and of their malice aforethought did make an assault; and a certain revolving pistol which was then and there loaded with gunpowder and leaden bullets, and by them, the said J. E. Bobbitt, Robert Goodman and Everett Bobbitt, in their hands then and there had and held, they the said J. E. Bobbitt, Robert Goodman, and Everett Bobbitt did then and there feloniously, willfully, deliberately, premeditatedly, on purpose and of their malice aforethought, discharge and shoot off, upon and against him, the said Franklin Smith; and him the said Franklin Smith, with the leaden bullets aforesaid out of the pistol aforesaid then and there, by force of the gunpowder aforesaid, by the said J. E. Bobbitt, Robert Goodman and Everett Bobbitt shot off and discharged as aforesaid, then and there feloniously, willfully, deliberately, premeditatedly, on purpose and of their malice aforethought, did strike, penetrate and wound the said Franklin Smith in and upon the breast and body of him, the said Franklin Smith, thus and thereby, then and there, feloniously, willfully, deliberately, premeditatedly, on purpose and of their malice aforethought, giving to him, the said Franklin Smith, with the leaden bullets aforesaid, so, as aforesaid discharged and shot off out of the pistol aforesaid, by the said J. E. Bobbitt, Robert Goodman and Everett Bobbitt, one mortal wound, of which said mortal wound he, the said Franklin Smith, languished and languishing did live for the space of five minutes, when of the said mortal wound the said Franklin Smith on the said 19th day of March, 1907, at the county of Howard and state of Missouri, died; and so the prosecuting attorney aforesaid upon his official oath aforesaid, doth say that the said J. E. Bobbitt, Robert Goodman and Everett Bobbitt, him the said Franklin Smith, at the county and state aforesaid, in the manner and by the means aforesaid, feloniously, willfully, deliberately, premeditatedly, and on purpose and of their...

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