State v. Blunt

• Decision Date: 31 May 1892
• Citation: 110 Mo. 322,19 S.W. 650
• Parties: STATE v. BLUNT.
• Court: Missouri Supreme Court

19 S.W. 650

110 Mo. 322

STATE v. BLUNT.

Supreme Court of Missouri, Division No. 2.

May 31, 1892.

APPEAL — ALTERED RECORD — PRACTICE — BILL OF EXCEPTIONS — MURDER — VENUE — SUFFICIENCY OF VERDICT — NEW TRIAL — INSTRUCTIONS.

1. The verity of the record cannot be controverted on appeal by affidavits; but where a record has been altered the remedy is to move to amend, pointing out the alleged defects, verifying the motion by affidavits.

2. When the evidence is included in the bill of exceptions it will be looked to in determining whether proper exceptions to the rulings of the court were saved, and in supplying defects or omissions apparent in the transcript. State v. Griffin, 98 Mo. 672, 12 S. W. Rep. 358, distinguished.

3. Rev. St. 1889, § 3989, provides that "where any mortal wound shall be given, * * * or any means shall be employed, in one county, by which any human being shall be killed, who shall die thereof in another county, an indictment for such offense may be found in either county." Held, where one received a shot wound, from which he died in another county, the indictment was properly found in the county where the shooting occurred. Ex parte Slater, 72 Mo. 102; State v. McGraw, 87 Mo. 161; State v. Hatch, 4 S. W. Rep. 502, 91 Mo. 568, distinguished.

4. A verdict that, "We, the jury, find defendant guilty of murder in the first degree as charged in the second count of the indictment, and we find him not guilty as to the first count of the indictment," is sufficient on which to enter judgment of murder in the first degree.

5. On a motion for a new trial, defendant sought to show by affidavits that during the trial one of the jurors was permitted to separate from the others, who remained in the box, and go some distance from the court room, beyond the view of the court and defendant. Held, that such acts, occurring in the presence of the court, can only be preserved for review by objecting at the time, and saving exceptions.

6. In a trial for murder, when the evidence clearly showed that defendant was the aggressor, with no provocation tending to produce "hot blood" in defendant, there was no error in not instructing the jury in relation to manslaughter.

Appeal from circuit court, McDonald county; JOSEPH CRAVENS, Judge.

Newt Blunt was convicted of murder in the first degree, and appeals. Affirmed.

The other facts fully appear in the following statement by MACFARLANE, J.:

The defendant was indicted for the murder of Jack Majors, a brakeman on the 'Frisco Railroad, and has appealed to this court. The second count, upon which the defendant was found guilty of murder in the first degree, was the following: "And the grand jurors aforesaid, upon their oaths aforesaid, do further present and charge that Newt Blunt, alias Bud Blunt, on the 26th day of December, 1890, at the county of Newton and state of Missouri, in and upon one Jack Majors, then and there being, feloniously, willfully, deliberately, premeditatedly, on purpose, and of his malice aforethought, did make an assault; and a certain revolving pistol, which was then and there a deadly weapon, loaded and charged with gunpowder and leaden balls, and which said pistol, so loaded as aforesaid, he, the said Newt Blunt, alias Bud Blunt, in his right hand then and there had and held, he, the said Newt Blunt, alias Bud Blunt, did then and there feloniously, willfully, deliberately, premeditatedly, on purpose, and of his malice aforethought, discharge and shoot off, at, upon, against, and in the head of the said Jack Majors; and that the said Newt Blunt, alias Bud Blunt, with the leaden balls, gunpowder, and pistol aforesaid, so had and held and discharged and shot off as aforesaid, did then and there, feloniously, willfully, deliberately, premeditatedly, on purpose, and of his malice aforethought, strike, penetrate, and wound him, the said Jack Majors, in and upon the head, giving to him, the said Jack Majors, then and there with the deadly weapon aforesaid, namely, the pistol, so loaded and charged as aforesaid with gunpowder and leaden balls, and so discharged and shot off as aforesaid, in and upon the head of him, the said Jack Majors, as aforesaid, one mortal wound of the breadth of one inch and of the depth of four inches, of which mortal wound, so inflicted as aforesaid, the said Jack Majors from the 26th day of December, 1890, until a later hour of the 26th day of December, 1890, did languish, and languishing did live, and on which said 26th day of December, 1890, the said Jack Majors, at the county of Lawrence and state of Missouri, of the mortal wound aforesaid, died; so the grand jurors aforesaid, upon their oath aforesaid, do say and present that the said Newt Blunt, alias Bud Blunt, him, the said Jack Majors, in the manner and by the means aforesaid, feloniously, willfully, deliberately, premeditatedly, on purpose, and of his malice aforethought, did kill and murder, against the peace and dignity of the state. [Signed] JOHN T. STURGES, Prosecuting Attorney of Newton County."

The testimony in this cause is very voluminous, covering several hundred pages, and it has not been indexed. After reading that testimony under the difficulties attendant on such circumstances, we regard the statement of the conductor of the train, John Gillies, when testifying as a witness, as a substantial statement of the controlling facts in the cause. We therefore insert the main portion of his testimony in narrative form, adding thereto hereafter, as occasion may require, brief extracts or results from the confirming testimony of other witnesses. Gillies testified: "When the train stopped at Granby, Mr. Majors stepped off on the platform of the depot. There were five or six passengers who got off at the station of Granby, and, when Mr. Majors got on the depot platform, this man, though I then knew him as a heavy-set man, but whom I now recognize as Blunt, made to come right up the steps of the platform. Mr. Majors said to him: `Wait a minute till the passengers get out;' but he still pushed up, and I leaned down, and says: `Hold on a minute until they get out.' I stood this way. There was an old man, a little crippled, was the last. I helped him down to the depot platform, and then I took a step off the platform, this way, and says: `All right, come on.' There was some ladies, colored and white, got on, but this heavy-set man, Mr. Blunt, he staid on the depot platform. He says `I would like to see the son of a bitch that would keep me from getting on a train.' I says: `Oh, that is all right; we are just waiting to let these people get out, so as to make more room for you.' I then turned and walked past the smoking car to the baggage car, up the platform, and says: `Charlie, is it all right?' — talking to Charlie, the agent at Granby, meaning was all the baggage and express on the train. He said, `Yes.' I turned around and looked, and hollered, `All aboard.' I saw this man step on the platform of the ladies' coach, signaled to the engineer, and the train started. After we left Neosho that evening, there was a big hand organ put in the baggage car; it ran on four wheels and was about three and a half feet high, — more than that with the trucks; after we left Granby, there was somebody in the baggage car playing the organ; I stood on the platform of the smoking car to hear the playing, may be about a minute; then I turned round and walked through the side of the mail department into the smoking-car department, and then walked through, and opened the door of the smoker, and stepped onto the platform of the smoker; when I got there I found Jack Majors and this man, Mr. Blunt, standing on the platform of the ladies' coach; I stepped over; he says, `I want to find the son of a bitch that interfered with me getting on this train.' Blunt says: I would like to find the son of a bitch that would object to me getting on this train when and as I please;' I had my lamp on my left arm, and I raised my lamp and looked in his face to see if the man was drunk, and I did not think he was drunk; I looked in his face to see if he was drunk, and I says: `Here, you needn't get insulted at all; there was no insult intended to you at all by asking you to stay till the people got off the car; it was to save trouble, — you crowding them up, and they crowding you down;' and then he repeated the same thing again, about he wished he could find the son of a bitch; and I says. `You needn't make any trouble here;' and I opened the door of the ladies' coach, and says: `You act like a gentleman, and you can go anywhere you please; into the ladies' car, if you want to;' he followed me in, walked up the car to the third or fourth seat on the left-hand side, and sat down. I started through the coach; he passed me in the ladies' coach, and sat down; Majors turned around, and went into the smoker; I came into the ladies' coach, and he went into the smoking-car from where I saw him; I started to take up my tickets; I came to Mr. Blunt, and says, `Tickets, please;' he handed me a ticket from Granby to Webb City; I punched it, and says, `You change cars at Pierce City;' and he says, `Just if I God damn please;' I says, `There is no necessity for any of that kind of talk; you said you would be a gentleman; you said you would act like a gentleman, and we expect it;' there was another gentleman sitting down, a Mr. Courter, and I handed him back his ticket; it was from Granby to Joplin, and I says to Mr. Blunt again, `Now you want to be quiet.' I walked through the car, and as I came alongside where Mr. Blunt was sitting he had a bottle out and a big knife, and he had taken the cork out of the bottle, and I says, `Here, you can't drink in this car;' he says, `Well, bring on your son of a bitch,' and he struck at me like that, and I says, `You don't want to do anything like that,' and he struck at me again, and took a drink; I says, `Now, don't drink in this car; if you want to drink and have a...