State v. Darling

• Citation: 115 S.W. 1002,216 Mo. 450
• Parties: STATE v. DARLING.
• Decision Date: 02 February 1909
• Court: United States State Supreme Court of Missouri

115 S.W. 1002

216 Mo. 450

STATE v. DARLING.

Supreme Court of Missouri, Division No. 2.

February 2, 1909.

1. HOMICIDE (§ 29)—PERSONS LIABLE—CONSPIRATORS.

A person entering into a conspiracy to assault another will be held accountable for his death due to the use of a deadly weapon by the person whom he intended to aid in the assault, thought he did not know that such person entertained a felonious intent toward decedent, and that he had or intended to use a deadly weapon.

2. INDICTMENT AND INFORMATION (§ 52)— AMENDMENT—REVERIFICATION.

An amendment of an information for murder in the first degree by the insertion of the word "deliberately," and in another place the word "willfully," was authorized by Rev. St. 1899, § 2481 (Ann. St. 1906, p. 1490), without a reverification of the information.

Appeal from Circuit Court, Cooper County; Wm. H. Martin, Judge.

Silas Darling was convicted of manslaughter in the fourth degree, and he appeals. Affirmed.

C. D. Corum, for appellant. Herbert S. Hadley, Atty. Gen., and F. G. Ferris, Asst. Atty. Gen., for the State.

GANTT, P. J.

This is the second appeal in this cause. The former appeal was decided at the October term, 1906, of this court, and reported in 202 Mo. 150, 100 S. W. 631. That appeal resulted in reversing the judgment and remanding the cause for a new trial. At the October term, 1907, the defendant was again put upon his trial and convicted of manslaughter in the fourth degree, and his punishment assessed at imprisonment in the county jail for a period of 12 months, and from that sentence and judgment he has again appealed to this court.

The full statement of all the material facts will be found in the opinion of Judge Burgess on the former appeal. Much of the testimony, however, elicited on the first trial was eliminated on the last trial, and it will only be necessary to state for the understanding of the questions presented on this appeal the salient and controlling facts. On the 13th day of March, 1905, Samuel Jeffress was killed at the county of Cooper by Ernest Darling, on the farm of Charles Carroll, for whom he was working on that day. At the time of his death he was at work plowing in the field of Mr. Carroll. The evidence discloses that in the month of December, 1904, or January, 1905, Ernest Darling had a fight with one Cramer near the town of Blackwater, in said county. It seems that Cramer was a friend of the deceased, Jeffress, and, as Cramer had been quite badly beaten in his fistic encounter with Ernest Darling, Jeffress the deceased, espoused the cause of Cramer, and hot words passed between Ernest Darling and the deceased. The evidence tended to show that the deceased was about 18 years of age, and resided with his mother at the village of Nelson, in Saline county, near the Cooper county line. On the 11th of March, 1905, he left his home to work for Mr. Carroll in Cooper county. On the next day, which was Sunday, Emmett Yeager went to the Darling home, where he found the defendant, Silas Darling, his brother Ernest, and Dorval Burris. Yeager told Ernest Darling that the deceased was going to work at Mr. Carroll's the next day. Ernest replied, "That will be all right." Ernest Darling then said to Dorval Burris, "Sam Jeffress is going to work out here at Charles Carroll's to-day." Burris replied, "Is he?" and Ernest said, "Yes, and I will get the s____ of a b____ tomorrow." Burris then said: "I would like to slip along and see it done. I have got to plow your mother's garden in the morning, but if you will wait until to-morrow afternoon, I will go." After this the defendant, Silas Darling, joined Ernest and Burris, and Ernest said to defendant, Silas, "Sam Jeffress is going to work out here at Charles Carroll's," and defendant said, "Is he?" and turned and left the room, but before going Ernest said to him that he would get him (Jeffress). Burris told Silas, the defendant, that Ernest said he ought to go down to-morrow, and defendant said, "Yes, I believe you ought." That same afternoon Emmett Yeager and Ernest Darling were at the Finley home together. Ernest asked Millie Finley if she knew Sam Jeffress, adding, "He is a pretty good-looking boy," to which she replied, "Yes," and Ernest said, "Probably he won't look as well to-morrow as he does today." On the way home that night Ernest said to Yeager, "I told Sam while he was cussing me on the street at Blackwater I would get my revenge, and, by God, I will get it, too." On the same Sunday, Burris was riding behind Silas on a horse on the way home from Speece's, when Silas, the defendant, said to him, "I had better go down with Ern to-morrow; Sam might come the knife play"—referring to the deceased. After dinner the next day, as the defendant started out of the house he said to Burris that he was going over to Carroll's, to which Burris replied, "No, we will go up and chop cordwood," and then they went towards the barn where they said they would go and settle upon what they were going to do. While at the barn, Ernest, Silas, and Burris discussed the subject of going over to Carroll's to whip the deceased. Burris said to Ernest, "Ern, you ought not to go down there, but catch him on the road," to which Ernest replied. "If I don't go over there now, G____ d____, if I don't go now, I won't ever get him." They started from the barn, Ernest and Silas, the defendant going around on the north side of the house where there was a pile of scrap iron, and Burris passing through the house to get a drink of water. The three then went on towards Carroll's place. As they came along the road, Ernest said it would be a joke if deceased had gone to town. They met Charles Pyatt on the road, and said to him that they were duck hunting. As they approached the Carroll house, it was agreed that the defendant should do the talking, and he asked to borrow a lister from Mr. Carroll. At the Carroll house, the defendant asked Mrs. Carroll where Mr. Carroll was, and he, being informed by her that he had gone to town, said, "Well, we will go on down towards the Lamine river, and we will meet him." They left the house talking about the deceased for some distance, and then sent Burris back for the purpose of learning whether the deceased was about the place. When he came back and joined Ernest and the defendant, they saw the deceased at work in the field, and went across the field towards him. As they approached him they found him with his team stopped, leaning against one of the handles of the tongueless cultivator, which he was working. He was wearing a pair of gloves, one of which he removed in taking a chew of tobacco. He had in his pocket a small monkey wrench for use with the cultivator. Burris and the defendant approached the deceased directly in front and engaged him in conversation, while Ernest passed around to the rear of the deceased, and without a word passing between the deceased and Ernest, and without any unpleasant or unusual conversation between the deceased and the defendant and Burris, or any hostile movement on the part of the deceased, Ernest Darling hit deceased on the side and back of the head with what appeared to be a piece of iron, and the blow felled him to the ground at the cultivator handles. Ernest quickly followed the first lick with blows upon the head of the deceased with this iron, saying, as he did so, "You remember how you done me down at Blackwater; I will get even with you." He asked the deceased to holloa "Enough," which deceased did. The head of the deceased was beaten down into the ground, and he was mangled and bleeding profusely when Burris lifted him, but he was too weak to stand. Thereupon the defendant, Silas, said, "I know what we will do; we will turn the team loose," and said they would make people think the team had injured the deceased. About this time Bill Spry, passing in the distance, was called to the scene by Burris, and to him Ernest said, referring to the deceased, "He called me a son of a b____, and I knocked him over the plow handles with the lines over his shoulders." Spry said, "The boy is bleeding a right smart." And Ernest said, "Yes, and let him bleed, d____ him; it is good enough for him." The deceased was taken to the home of Mr. Carroll by the defendant, his brother and Burris, and died just as he reached the house. The defendant declined to help the deceased into the wagon, or to take him out when they reached the house, saying that he did not want to get blood on his hands. Witnesses for the state who visited the scene of the tragedy the next morning testified that the earth where the deceased fell bore the impression of his head and the stains of pools of blood. No rocks or other objects which could have been used as weapons were found near the scene, but witnesses for the defendant testified that several days after the killing they found several rocks at this immediate point with blood upon them. After the homicide, Ernest said to Burris in the presence of the defendant, "You must swear that he called me a son of a b____ and started at me with a monkey wrench, and that you put it back in his pocket." After the preliminary trial, the defendant told Burris that he must keep his mouth shut and not tell anything. And defendant said that he did not know what to do or think about that monkey wrench. While in the jail together they had frequent conversations as to what their testimony would be. The coroner testified that he found the monkey wrench, which had remained in Jeffress' pocket while Ernest was beating him. The evidence on the part of the defendant tended to prove threats of the deceased against Ernest Darling. These threats were not communicated, however, to Ernest. There was also evidence impeaching witness Spry. The defendant testified in his own behalf that, if his brother Ernest Darling on the occasion of going to the field had upon or about his person a piece of iron, he, defendant, was not aware of it. Burris testified that he was...