State v. Larkin

• Citation: 157 S.W. 600
• Parties: STATE v. LARKIN et al.
• Decision Date: 20 May 1913
• Court: United States State Supreme Court of Missouri

157 S.W. 600

STATE v. LARKIN et al.

Supreme Court of Missouri, Division No. 2.

May 20, 1913.

1. CRIMINAL LAW (§ 829) — INSTRUCTIONS — REQUESTS COVERED.

Requested instructions were properly refused where the court had already fully instructed on the subject-matter.

2. HOMICIDE (§ 30) — AIDING AND ABETTING — PRESENCE AT KILLING.

Mere presence at the scene of a killing without more is not such aiding, abetting, assisting, encouraging, or advising such killing as is required by law to constitute guilt.

3. HOMICIDE (§ 234) — ABETTING — SUFFICIENCY OF EVIDENCE.

Evidence held insufficient to sustain conviction of a wife for the murder of her husband, she having had no physical connection with the crime, though present at the killing.

4. CRIMINAL LAW (§ 721) — ARGUMENT OF COUNSEL — COMMENT ON FAILURE OF ACCUSED TO TESTIFY.

Under Rev. St. 1909, § 5242, providing that any person on trial for crime may at his option testify for himself, and shall be liable to cross-examination as to any matter referred to in his examination in chief, and may be contradicted and impeached as any other witness in the case, the prosecuting attorney may comment on the failure of an accused, testifying as a witness for himself, to deny or explain incriminating circumstances testified to by other witnesses.

5. HOMICIDE (§ 300) — SELF-DEFENSE — INSTRUCTIONS.

Evidence held insufficient to show that accused brought on the difficulty for the purpose of killing deceased, so as to authorize instructions that in such case he could not urge self-defense.

6. HOMICIDE (§ 109) — DEGREE — SELF-DEFENSE.

Though murder in the second degree is presumed from the simple fact of the willful killing of one man by another, such presumption does not prohibit defendant from showing that he acted in self-defense.

7. HOMICIDE (§ 112) — SELF-DEFENSE.

The fact that accused was the paramour of deceased's wife, and was found by deceased with his wife at the time of the killing, would not on the theory of the unwritten law prevent accused from relying on self-defense.

8. CRIMINAL LAW (§ 404) — DEMONSTRATIVE EVIDENCE.

In a prosecution for killing a husband who had followed his wife and her paramour, the accused, to a spot under a tree, the introduction in evidence of beer bottles which were there found was not error.

9. CRIMINAL LAW (§ 721½) — ARGUMENT OF COUNSEL — COMMENT ON FAILURE OF WITNESS TO TESTIFY.

In a prosecution for murder, where it was shown that defendant's daughter was present at or near the place of killing, comment of the prosecuting attorney as to the failure of the daughter to testify is not error.

Appeal from Circuit Court, St. Francois County; Peter H. Huck, Judge.

Roy Larkin and Ida Belle Harris were convicted of murder in the second degree, and they appeal. Prosecution abated by death of Ida Belle Harris, and judgment reversed as to Roy Larkin.

Defendants were jointly tried on the charge of murder in the second degree in the circuit court of St. Francois county on the 16th day of June, 1912, and, being found guilty, the punishment of each of them was assessed at imprisonment in the penitentiary for the term of 10 years. From this conviction, after the usual motions for a new trial and in arrest of judgment, they jointly appeal.

Defendant Ida Belle Harris was the wife of one Henry Harris, who, as the evidence discloses, was shot to death by defendant Roy Larkin in St. Francois county on May 3, 1912. The information charges defendant Larkin with murder in the first degree, and defendant Ida Belle Harris is jointly charged as accessory thereto before the fact. The state elected, however, to waive the charge of murder in the first degree, and to proceed against defendants for murder in the second degree.

The facts of the case are few and simple. Practically none of the testimony adduced on the part of the state was denied by the defendants, and likewise practically none of the testimony adduced by the defendants was denied by the state. The facts of the homicide, in brief, are about as follows: Deceased, Henry Harris, was by occupation a miner, engaged in labor at the time of his death upon what is called the "night shift." His work required him to leave his home about 9 o'clock every night. His wife, Ida Belle Harris, who is one of the defendants here, for some weeks prior to the killing had been in the habit of permitting to visit her and of entertaining during the absence of the deceased the defendant Roy Larkin, who was a bartender in one of the saloons of Flat River. There is no direct and positive evidence that the defendants sustained toward each other illicit relations; but the inference that they did so is patent from the record. On the night of the homicide, deceased after preparing his lunch, and about the hour of 9 o'clock, left his home for the purpose of going to his work. Some 30 minutes after deceased left defendant Larkin came to the home of deceased, bringing with him four bottles of beer. For some little time, 30 minutes or more perhaps, defendant Larkin sat in the kitchen of the home of deceased and talked with defendant Ida Belle Harris and one Cora Carrow, the hired servant of the Harris's. During the conversation he drew from his pocket a pistol, and laid the same upon a chair. When Larkin left the kitchen, he returned the pistol to his pocket, and accompanied by Mrs. Harris left the house, going with her, as the subsequent testimony shows, to a point some 91 yards distant from, and southeast of, the house of deceased. Shortly after the defendants had left the house of deceased together, the latter returned from his work and went into the north room of his dwelling, where he obtained from a drawer of a sewing machine a 32-caliber revolver. Deceased was heard to enter the house and go into the north room by Cora Carrow and a young man by the name of Ames, who was in the kitchen visiting the said Cora, and with whom she was talking. Upon hearing the movements of deceased, Ames and Miss Carrow left the kitchen and passed through the house to the front porch, where they intercepted deceased. At this time deceased had the 32-caliber pistol in his hand and was heard to make threats against defendant Larkin, to the effect that he intended "to get the son of a bitch." Both Miss Carrow and Ames remonstrated with deceased, and endeavored to prevent him from going to the point where defendants then were; but they were unable to prevail on him to return. Shortly after deceased left his home seven pistol shots were heard by Miss Carrow and witness Ames coming from the direction toward which the deceased had gone. Thereupon Miss Carrow and Ames got a lantern and went to a point outside of the premises of deceased, and as stated, 91 yards distant therefrom, and found deceased dead from a gunshot wound. Defendant Ida Belle Harris when Miss Carrow and Ames came to the scene of the killing, was holding the head of her husband in her lap, and was crying or screaming. Miss Carrow said to defendant Mrs. Harris, "See what you have caused?" and Mrs. Harris replied, "Yes; Henry is killed; and I am the whole cause of it." Defendant Larkin was standing by, and witness Ames said to him: "That looks pretty bad." Larkin replied, "I had to do it, for he was shooting at me;" or, as the witness Miss Carrow puts it, Larkin said: "Yes, I shot him; but I couldn't help it; he was shooting at me." The uncontradicted testimony is that as stated, seven shots in all were fired; the two first shots were not so loud as the third shot; the third shot being followed by another shot, apparently of lesser volume, after which there were three loud reports in quick succession.

It is not contended by the state that defendant Mrs. Harris had any physical part in the killing of deceased. Defendant Larkin admits the killing, and urges self-defense. He says: "I seen it was either him or me, and I shot to hit." The only evidence which tends to show the guilt of Mrs. Harris is found in the testimony of the witness Miss Carrow, who says that Mrs. Harris talked to her on three or four occasions about deceased, saying that she (Mrs. Harris) "wished she was free; that she didn't see no more peace of her life; that she had had no satisfaction and she would rather if he (deceased) was clear out of the way," and that "if he was to get killed in the mine or hurt in any way Roy Larkin would take care of her;" and upon another occasion when Miss Carrow remonstrated with defendant Mrs. Harris as to her relations with defendant Larkin, and said to her, "If I was you I would be afraid to talk to him like you do, I would be afraid Mr. Harris would turn back some time and catch him," that Mrs. Harris said, "She would talk to him (Larkin) until the world looked level."

Defendant Mrs. Harris did not take the stand. All of the evidence offered on behalf of defendants came from the testimony of defendant Larkin, who said in substance that on the night of the killing he left the saloon of one Romine, where he was employed as a bartender, and went to a point near the place of the killing, where he met Mrs. Harris. Near the scene of the homicide there seems to have been a widely spreading red haw tree, called by the witnesses a "thorn tree." As to what transpired between the defendants after they met at the haw tree, or as to how long they remained there before deceased came, the record is silent. Defendant Larkin stated in his testimony that the first information he had of deceased's presence came from hearing footsteps as of some one running tolerably fast; that deceased came up and said to him, "Larkin, you son of a bitch, I am going to kill you." That thereupon deceased fired at him twice; that he then ran and while running discharged his pistol once, firing off to one side, but without aiming at deceased; that he, Larkin, got behind a little thorn bush, and that while there deceased shot at him again, and that thereupon he began shooting at deceased. Near the thorn tree...