The State v. Webb
| Decision Date | 02 February 1909 |
| Citation | 115 S.W. 998,216 Mo. 378 |
| Parties | THE STATE v. JESSE B. WEBB, Appellant |
| Court | Missouri Supreme Court |
Appeal from Clay Circuit Court. -- Hon. Francis H. Trimble, Judge.
Reversed and remanded.
Ben A Reed, W. J. Courtney and Martin E. Lawson for appellant.
(1) Instruction 5, given for the State, is wrong. It places the burden of proof on defendant to show that Inez Walkup killed herself of her own volition and not under the influence of his advice, counsel or assistance. It was the duty of the State to prove beyond a reasonable doubt that defendant was deliberately present assisting, counseling and advising her to commit suicide. The burden does not shift to defendant. State v. Wingo, 66 Mo. 181; State v Hickam, 95 Mo. 322; State v. Hardelein, 169 Mo 579; Tobacco Co. v. United States, 77 U.S. 266; State v. Thornton, 41 L. R. A. 530; State v. Schweitzer, 57 Conn. 532; Phillips v. State, 8 Am. St. Rep. 471; Tiffany v. Com., 121 Pa. St. 165; 2 Bishop's New Criminal Procedure (4 Ed.), secs. 599, 600; 1 Ib., sec. 1049. (2) Instruction 11 is ordinarily a correct statement of the law. In this case it was a great injustice because a man weakened by consumption, shot near the heart, burning with fever, having lain in a room in that condition all day with a morbid crowd passing in and out, was called upon to make a statement to be couched in language employed by an official eager to convict some one, and so ignorant he misspelled many words, both medical names and common words, and evidently unable to put the meaning of defendant into language capable of conveying anything like the same meaning, and yet who wrote, read and signed the statement. Under these conditions, the court says in instruction 11, "what the proof may show you that the defendant has said against himself, if anything, the law presumes to be true, because against himself." The law is not a farce -- that is not the law. Defendant has no recollection of the statement, and denies it. The jury should have been required to find that defendant was in such condition of mind and body as to be able to know what answers he was making and to have fully understood the queries, and to have found that this doctor really wrote the substance of what he asked and was told, and that he really read the statement to defendant who at the time was in condition to understand it and did understand it. 2 Bishop's New Criminal Procedure (4 Ed.), sec. 604. (3) Instruction A, asked by defendant, should have been given. If defendant did reconsider his purpose to die with Inez Walkup and did try to secure her agreement not to commit said act, and if he was not fully satisfied that she had abandoned her idea of suicide and yet permitted a loaded pistol to be within her reach, and if he was physically able to put it beyond her reach then he was culpably negligent. R. S. 1899, sec. 1834. (4) Instruction B, refused, should have been given. No conviction can result unless every material element of the crime is proven beyond a reasonable doubt. The State's instruction sets out the material facts necessary for conviction. The jury should be told that unless all such material facts are proven they cannot convict. Com. v. McKie, 61 Am. Dec. 410; 1 Bishop's New Criminal Procedure (4 Ed.), sec. 1049.
Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
Instruction 5 should be considered in the light of the proof in this cause. Appellant testified as a witness in his own behalf, and admitted that he and deceased entered into a contract, agreement and conspiracy to commit suicide; that they came to Smithville for that sole purpose; that they had made two ineffectual attempts just prior to the fatal day; that appellant bought the pistol late on the afternoon previous to the morning of the tragedy, and even after he had 'phoned the second time for his friend, Reed, to come and take him away. The proof shows that appellant was able to walk to the store where he purchased the revolver, a distance of one hundred yards or more, from the hotel, and the further fact that appellant was shot himself, are all strong earmarks showing that the contract and conspiracy to commit suicide were being carried out as agreed upon. The law is well settled in this State that the act of one conspirator in a common design is the act of all conspirators connected therewith, whether present or absent. It has been a crime to aid, counsel or assist another to commit suicide, even as far back as the case of Rex v. Tyson, Russ. & Ry. C. C. 523 (). The mere act of advising another to commit suicide is unlawful, and if the latter acts on such advice and kills himself, the former is guilty. Com. v. Bowen, 13 Mass. 356; Com. v. Mink, 123 Mass. 422; Reg. v. Allison, 8 Car. & P. 418; Blackburn v. State, 23 Ohio St. 146; Burnett v. People, 204 Ill. 208. Our Legislature has seen fit to make the deliberate aiding of another to commit suicide manslaughter in the first degree. Sec. 1822, R. S. 1899; State v. Ludwig, 70 Mo. 412; State v. Fitzgerald, 130 Mo. 407. After appellant admits all the facts of the contract and conspiracy between himself and deceased to commit suicide, the preparation therefor, and the carrying out of this contract on the part of the deceased and the ugly wound received by appellant, as he states, then appellant comes into court and says that he withdrew from the contract and conspiracy to commit suicide on the evening before, and that deceased consented to such withdrawal.
The defendant has appealed to this court from the conviction of manslaughter in the first degree, at the November term, 1907, of the circuit court of Clay county.
The prosecution was begun on November 7, 1906, by the prosecuting attorney of Clay county filing an information in the circuit court, duly verified, wherein he charged the defendant with having on the 11th day of October, 1906, feloniously, deliberately, premeditatedly, on purpose and of his malice aforethought shot and killed one Inez Webb. He was duly arraigned and entered his plea of not guilty and the cause as above stated was tried at the November term, 1907.
The evidence tended to show that at the Peddicord Hotel in Smithville, Clay county, on the morning of the 11th day of October, 1906, the defendant Jesse Webb and Inez Webb or Walkup were both shot. Defendant received a pistol bullet near the heart and the deceased received three bullet wounds near the heart and one through the head. She died immediately. Prior to the shooting for some months both the defendant and the deceased worked at the State Hospital for the Insane at St. Joseph, Missouri. They had associated together for some time and the evidence tended to show that he was a consumptive. He quit work at the Hospital October 1 1906, and she quit work some two days later. They were both employed at the Hospital as day nurses. He had been employed at the Hospital about two years, and she had been employed there from seven to twelve months. They had been associated together for about two months. Dr. Woodson, the Superintendent of the Hospital, testified that Webb was run down and not strong and he had prescribed malt and cod liver oil for him. After leaving the Hospital, defendant went down into the city of St. Joseph to live, and deceased followed him and they remained together, holding themselves out as man and wife. After remaining a few days in St. Joseph, they went to Plattsburg to visit his relatives, where they remained a few days. While there he was very sick. They left Plattsburg, saying they were going to Hot Springs, Arkansas, for his health, and started, but went to Smithville where they remained several days. At Plattsburg the deceased said that when the defendant died she wanted to die too. The defendant in his testimony stated that she suggested that they commit suicide, but he refused. After reaching Smithville, however, they agreed to commit suicide together, and wrote letters to their relatives indicative of their intention so to do. The deceased bought morphine, which they both took on Monday night, but they waked up about one o'clock on Tuesday. The deceased then said she would get some strychnine. She got it and they took it Tuesday night. The strychnine did not kill them and they waked up about ten or eleven o'clock Wednesday morning. The defendant then got the deceased to telephone to a Mr. James Reed at Trimble, Missouri, to come to him at Smithville, and Reed in response arrived at Smithville that evening at five or six o'clock. Prior to Reed's arrival at Smithville, however, defendant purchased a revolver from a Mr. Dougherty, who was a clerk in a hardware store, and who loaded the revolver for him. When Reed arrived at Smithville, the deceased and the defendant were in bed. She represented herself as Mrs. Webb, and Reed sat down on the edge of the bed and the defendant requested him to take defendant to Edgerton to his brother Louis Webb. Reed started to get defendant's clothes for him, but the deceased got between Reed and the clothes and told him that defendant was not going away from there; if he did, she would follow him and kill him. Reed then left them and told them he would be back in the morning, but before he reached the hotel the next morning both of them had been shot. Reed testified that the defendant was awfully weak and was spitting blood, and he could scarcely hear him talk. The defendant testified that the evening before the shooting he abandoned his purpose to destroy himself. And after Reed left the hotel that evening, he...
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