State v. Sherman
| Citation | 175 S.W. 73,264 Mo. 374 |
| Parties | THE STATE v. SAMUEL SHERMAN, alias JOHN COLLINS, Appellant |
| Decision Date | 30 March 1915 |
| Court | United States State Supreme Court of Missouri |
Appeal from Jackson Criminal Court. -- Hon. E. E. Porterfield Judge.
Affirmed.
O. F Wimmer and L. N. Dempsey for appellant.
(1) The court refused to permit qualified jurors to serve, for the reason that they swore that they would not impose capital punishment, even though they would return a verdict of guilty, in violation of Sec. 4450, R. S. 1909. (2) Other crimes than the one charged. State v. Hyde, 234 Mo 200; State v. Philips, 233 Mo. 299. (3) The court erred in giving the instruction on murder in the first degree, for the reason there is no evidence on which to base said instruction. State v. May, 142 Mo. 135; State v. Gordon, 191 Mo. 227; State v. Eperly, 201 Mo. 572; State v. Walker, 196 Mo. 87; State v. Garrison, 147 Mo. 49. Even though there had been evidence on which to base said instruction it erroneously declared the law, in that it did not require the jury to find from the evidence, beyond a reasonable doubt, the elements constituting murder in the first degree. State v. Martin, 124 Mo. 522. Said instruction was erroneous for the further reason that it referred the jury to instruction number 7, which instruction attempted to define self-defense and improperly defined the same. Instruction number 7 is erroneous in that it required the jury to find that deceased was about to kill defendant or to do him some great bodily injury before the defendant had a right to shoot in his own defense. State v. Edwards, 203 Mo. 540; State v. Garrett, 170 Mo. 397; State v. Reed, 154 Mo. 22; State v. Beaty, 190 Mo. 286; State v. Feeley, 194 Mo. 322. The court erred in giving instruction number 10, for the reason, there was no evidence on which to base said instruction and for the reason said instruction did not require the jury to find that the defendant shot said Lynch with malice aforethought and for the reason that said instruction authorizes the jury to find the defendant guilty of murder in the first degree, regardless of what force or means said Lynch was using in making said arrest. State v. Banks, 167 S.W. 505; State v. May, 142 Mo. 135. (4) The verdict is contrary to the evidence, for the reason that, under the evidence, the defendant was entitled to be acquitted on the ground of self-defense, or if found guilty at all he could be found guilty only of murder in the second degree, as there was no element of deliberation in the case. State v. May, 142 Mo. 135. (5) The court erred in refusing to rebuke the prosecuting attorney for denouncing the defendant as a "highwayman" in his final argument to the jury. State v. James, 216 Mo. 394; State v. Newcomb, 220 Mo. 54; State v. Thavanat, 220 Mo. 545; State v. Claney, 225 Mo. 654; State v. Philips, 233 Mo. 299; State v. Farrel, 233 Mo. 452; State v. Hyde, 234 Mo. 200; State v. Miller, 234 Mo. 588; State v. McGrath, 128 S.W. 966.
John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
(1) Persons conscientiously opposed to the infliction of the death penalty in cases wherein such penalty is provided by law are not competent to sit as jurors. Sec. 5218, R. S. 1909; State v. Miller, 156 Mo. 84; State v. David, 131 Mo. 390; State v. Punshon, 133 Mo. 51; State v. Wooley, 215 Mo. 672. (2) Where a juror on his voir dire examination declares that his opinion is not such as to bias or prejudice his mind, and that his opinion will readily yield to the evidence in the case, he is a competent juror. State v. Church, 199 Mo. 629; State v. Darling, 199 Mo. 196; State v. Sykes, 191 Mo. 75; State v. Brennan, 164 Mo. 507; State v. Bronstine, 147 Mo. 520; State v. McGinnis, 158 Mo. 105. (3) If an officer suspects from his own knowledge of facts, or from facts communicated to him by others, that a felony has been committed and has reasonable ground to believe that the accused is guilty of the felony, he may arrest him. State v. Spaugh, 200 Mo. 604; State v. Cushinberry, 157 Mo. 181; State v. Craft, 164 Mo. 644; State v. Albright, 144 Mo. 653; State v. Fuller, 96 Mo. 168; State v. Evans, 161 Mo. 108; State v. Holcomb, 86 Mo. 381; State v. Dierberger, 96 Mo. 672; Anderson v. State, 133 Wis. 610. (4) The statement of appellant that on the night of the homicide he in company with his codefendant, whom he knew to be a "holdup" man, went to the place of the homicide to look over a drug store situated there, was competent evidence to show his business there, armed, and to show the deceased officer had reasonable cause, taken in connection with their actions there at that time and information he had of other crimes committed in that neighborhood by persons answering the description of appellant and the authority of the officer, to arrest him without a warrant. See cases under point 3. (5) A defendant on the witness stand may be cross-examined in detail as to any matter referred to in his examination in chief, and may be contradicted and impeached as any other witness in the case. Sec. 5242, R. S. 1909; State v. Larkin, 250 Mo. 234; State v. Miller, 156 Mo. 85; State v. Sharp, 233 Mo. 284; State v. Barrington, 198 Mo. 71; State v. Feeley, 194 Mo. 315; State v. Kyle, 177 Mo. 663; State v. Fisher, 162 Mo. 172; State v. Cunningham, 154 Mo. 174; State v. McLaughlin, 149 Mo. 29; State v. Punshon, 133 Mo. 54; State v. Eisenhour, 132 Mo. 148; State v. Harvey, 131 Mo. 345; State v. Kennade, 121 Mo. 413; State v. Avery, 113 Mo. 498; State v. McKenzie, 102 Mo. 632; State v. West, 95 Mo. 142; State v. Brannum, 95 Mo. 22; State v. Berning, 91 Mo. 85; State v. Taylor, 134 Mo. 156; State v. Miller, 190 Mo. 462; State v. Keener, 225 Mo. 499; State v. Donnington, 245 Mo. 354. (6) Evidence of other crimes committed by one on trial for homicide is admissible for the purpose of showing that the officer had reasonable grounds for attempting to make the arrest and for the purpose of showing a motive for the homicide. State v. Grant, 79 Mo. 136; State v. Rudolph, 187 Mo. 84; State v. Collins, 181 Mo. 259; White v. State, 70 Miss. 253; People v. Wilson, 141 N.Y. 185, 188; English v. State, 34 Tex. Crim. 190; State v. Morgan, 22 Utah 162; State v. Shaw, 73 Vt. 149; Dryer v. State, 139 Ala. 117; Com. v. Carter, 66 N.E. 716; People v. Coughlin, 13 Utah 58; Williams v. Com., 85 Va. 607; Com. v. Major, 198 Pa. 200; People v. Pool, 27 Cal. 573; Anderson v. State, 133 Wis. 601; State v. Byrd, 72 S.C. 104; People v. Woods, 147 Cal. 265; Bishop v. Com., 109 Ky. 565.
Upon an information filed by the prosecuting attorney of Jackson county, appellant and John Tatman were charged with murder in the first degree in having shot and killed John Lynch, a police officer, in Kansas City in said county on the night of April 30, 1913. A severance was granted and a trial of appellant was had, resulting in a conviction as charged, the punishment being assessed at death. Following the usual procedure, an appeal was perfected to this court.
The facts are identical with those in State v. Tatman, ante, p. 357, except that appellant in his voluntary statement, made the morning succeeding the homicide, said that when he attempted to deliver his pistol to the officer the latter lunged forward and the pistol was discharged, whereupon the officer began shooting at appellant, when he returned the fire in self-defense. That he did not intend to shoot the officer in the first instance, but that the shot was accidental. That when appellant found Tatman, his codefendant, had been shot in the foot they made away as fast as they could and were apprehended a few blocks from the scene of the shooting by a police officer named Whalen.
I. The Selection of the Jury. -- Appellant contends that the trial court erred in excusing from the array a number of otherwise qualified jurors who stated upon their voir dire examination that they had conscientious scruples against finding a defendant guilty of an offense punishable with death. The action of the trial court was in compliance with the statute (Sec. 5218, R. S. 1909), which provides that persons having these scruples shall not be allowed or compelled to serve as jurors on the trial of an indictment for any offense punishable with death. The rule announced in this statute has received judicial approval without express reference thereto in State v. David, 131 Mo. 380, 390, 33 S.W. 28. Nor did the court err in refusing to exclude from the trial panel two jurors who stated on their voir dire examination that they had formed opinions in regard to the case from having read newspaper reports but that this would not influence them in finding a verdict according to the law and the evidence. [State v. Church, 199 Mo. 605, 631, 98 S.W. 16; State v. Darling, 199 Mo. 168, 196, 97 S.W. 592.]
II. Rulings on Evidence. -- Appellant contends that the court erred to his prejudice in the admission and exclusion of testimony. We have carefully reviewed the record and find that many of the objections made to the court's rulings were general, or that counsel for the appellant urged that the testimony objected to was "incompetent, irrelevant and immaterial and that it tended to prove no issue in the case." Objections of this character will not suffice for a basis for an exception unless the testimony offered is inadmissible for any purpose, and the testimony objected to was not of this class. [State v. Castleton, 255 Mo. 201, 164 S.W. 492.] Moreover, while much of the testimony complained of was irrelevant and the time of the trial court was unnecessarily taken up in its introduction, it was not, under a reasonable construction of same, prejudicial, and appellant's complaint in this regard is not well founded. In the presence of...
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