115 S.W. 1002 (Mo. 1909), The State v. Darling

Citation:115 S.W. 1002, 216 Mo. 450
Opinion Judge:GANTT, P. J.
Party Name:THE STATE v. SILAS DARLING, Appellant
Attorney:C. D. Corum for appellant. Herbert S. Hadley, Attorney-General, and F. G. Ferris, Assistant Attorney-General, for the State.
Case Date:February 02, 1909
Court:Supreme Court of Missouri
 
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Page 1002

115 S.W. 1002 (Mo. 1909)

216 Mo. 450

THE STATE

v.

SILAS DARLING, Appellant

Supreme Court of Missouri, Second Division

February 2, 1909

Appeal from Cooper Circuit Court. -- Hon. Wm. H. Martin, Judge.

Affirmed.

C. D. Corum for appellant.

The instruction is palpably erroneous. Under it, all that the jury had to find in order to convict defendant was that he understood that his brother intended "merely to whip said Jeffress," and that he went along to aid his brother in whipping Jeffress if it became necessary for him to lend his aid. This does not constitute manslaughter in the fourth degree, nor in any degree. If the jury had been called upon to determine that this defendant and his brother entertained a common intent to assault Jeffress, and that Jeffress was killed in the execution of such common plan, by Ernest Darling, without resort by him to the use of a deadly weapon, then probably the instruction would have embodied the elements of manslaughter. But there is another rule of law, which we also recognize, and which is equally well settled, namely: That if two or more persons combine together to commit an unlawful act, and the common design does not contemplate the commission of a homicide, and is of such a nature that a homicide will not be the natural or probable result thereof, then participation in that design is not sufficient to make one liable for the homicide committed concurrently with the execution of the common plan by the fresh and independent act of one of the conspirators acting outside of and foreign to the common design. (1) Defendant did not assault Jeffress, attempt to assault him, or encourage his brother to assault him; and unless Ernest Darling killed the deceased in the attempt to execute a purpose common to both, then defendant in no event can be guilty of anything, and the question of common design must be left to the jury. White v. People, 139 Ill. 149; Cortez v. State, 66 S.W. 459; Omer v. Commonwealth, 25 S.W. 594; Cecil v. State, 72 S.W. 197; Easterlin v. State, 43 Fla. 565; State v. Ferney, 21 P. 213. (2) The court committed error in declaring, as a matter of law, that defendant was liable for the independent act of his brother in assaulting the deceased with a deadly weapon and that such act was the natural and probable outcome of an attempt "merely to whip the said Jeffress." This also was a question for the jury. McElroy v. State, 120 Ala. 285; Frank v. State, 27 Ala. 43; Bowers v. State, 7 S.W. 246; Powers v. Commonwealth, 67 S.W. 735; State v. Ferney, 21 P. 213; Lusk v. State, 2 So. 257. (3) Instruction 8, given by the court, is as bad as the instruction which we have just discussed. Indeed, it is worse. It permits the jury to convict defendant of a felony notwithstanding the principal may have had no felonious intent, and permits the jury to find defendant guilty, regardless of whether Jeffress was killed or not. It, like the other manslaughter instruction, stands out in bold relief and does not refer the jury to any other instruction in the case. Under instruction 7 the jury were authorized to convict defendant if Ernest Darling had a felonious intent. Under instruction 8 the jury were authorized to convict the defendant if Ernest Darling had no felonious intent. And under either instruction the jury were authorized to convict this defendant of a felony even though he had no felonious intent, and without requiring the jury to find that he had committed any act or acts which would justify the inference of felonious intent as a matter of law.

Herbert S. Hadley, Attorney-General, and F. G. Ferris, Assistant Attorney-General, for the State.

(1) The court committed no error in the giving of instructions. Those given fully and fairly covered all the questions of law arising in the case, which were necessary for the information of the jury in giving their verdict. State v. Ernest Darling, 199 Mo. 168; State v. Silas Darling, 202 Mo. 150; State v. Bobbitt, 215 Mo. 10. (2) The instructions in reference to defendant's being present at the time Jeffress was killed for the purpose and with the intention of aiding and abetting his brother, Ernest, correctly declared the law. 1 McClain on Criminal Law, secs. 204, 205; Wharton on Homicide, sec. 418; 4 Elliott on Evidence, sec. 2781; State v. Walker, 98 Mo. 95, 110. (3) The court did not err in giving instructions 7 and 8 on manslaughter in the fourth degree. State v. Ernest Darling, 199 Mo. 197; State v. Silas Darling, 202 Mo. 170. (4) Instruction 11, in respect to a conspiracy and the statements and acts of the conspirators, was properly given. State v. Ross, 29 Mo. 32; State v. Ernest Darling, 199 Mo. 199; State v. Bobbitt, 215 Mo. 10; 4 Elliott on Evidence, secs. 2941-3.

OPINION

[216 Mo. 453] 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. 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 twelve 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, [216 Mo. 454] 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,

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the deceased, espoused the cause of Cramer and hot words passed between Ernest...

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