State v. Payton

Decision Date06 December 1886
Citation2 S.W. 394,90 Mo. 220
PartiesThe State v. Payton, Appellant
CourtMissouri Supreme Court

Appeal from Christian Circuit Court. -- Hon. W. F. Geiger, Judge.

Affirmed.

Harrington Hammond and J. M. Patterson for appellant.

(1) The record does not show that the indictment was returned by the foreman of the grand jury in the presence of the jury, as required by section 1797 of the Revised Statutes of 1879. (2) The indictment is absurd and inconsistent in this: that it charges that one mortal wound produced the death of the deceased, and that said mortal wound was given by both of the defendants with two different guns. (3) Defendant's motion for a new trial should have been sustained for the reason that the verdict was against the evidence. (4) The state did not prove any deliberation or premeditation on part of defendant, and the court committed a grievous error in giving the fourth instruction asked for the state. Deliberation and premeditation are material facts in murder in the first degree, and must be proved. State v Foster, 61 Mo. 552, and authorities cited; State v Mitchell, 64 Mo. 192; State v. Long, 64 Mo. 322. The sixth instruction should not have been given. The word "real," in the definition of reasonable doubt, has been condemned in State v. Owens, 79 Mo. 632. (5) As shown by affidavits, the jury was permitted to separate, which is urged as an error and as being contrary to section 1909 of the Revised Statutes of 1879. In case of State v. Collins, 81 Mo. 657, the question was considered fully and declared that such an error must reverse the cause. (6) If the testimony of the state is true, we have a case of murder in the second degree, and the court committed manifest error in not instructing the jury as to murder in the second degree. (7) Instructions numbered one, two, three, four and five, asked by defendant and refused, should have been given.

B. G. Boone, Attorney General, for the state.

(1) The record entry of the return of the indictment by the grand jury through their foreman, is in almost the identical language of the statute, and is not objectionable. R. S., sec. 1797. (2) The indictment correctly charges murder in the first degree, and is not subject to objection. 2 Hale's P. C. 173; 1 Bish. Crim. Proc. [2 Ed.] sec. 471; Whar. on Hom. [2 Ed.] sec. 338; 1 Whar. on Crim. Law, sec. 129; State v. Green, 13 Mo. 382; State v. Dalton, 27 Mo. 14; State v. Blan, 69 Mo. 317. (3) The defendant interposed no objections, at the time, to the admission or exclusion of any evidence, and he cannot now complain. State v. McDonald, 85 Mo. 539, and cases cited. (4) Malice, deliberation and premeditation are conditions of the mind which cannot be proved by express or positive evidence, but they may be deduced from all the facts and circumstances attending the killing. State v. Talbott, 73 Mo. 347, and cases cited; State v. Kotovsky, 74 Mo. 247; State v. Grant, 76 Mo. 247. (5) The use of the word "real," in the definition of a reasonable doubt, is not reversible error. The use of the word is a mere irregularity, and could not redound to defendant's injury. It is only where some positive rule of law has been violated, that may possibly prejudice defendant, that will justify a reversal. State v. Holme, 54 Mo. 160. The definition of reasonable doubt, as used in the case at bar, has, since the rendition of the opinion in State v. Owen, 79 Mo. 632, been approved by this court. State v. Jones, 86 Mo. 623. (6) The separation of the jury complained of by defendant is not such a violation of sections 1909 and 1966, Revised Statutes, as to justify a reversal. It is only such a separation that the jurors may be tampered with, and defendant be prejudiced, that will be entertained by this court. State v. Bell, 70 Mo. 633, and cases cited; State v. Collins, 86 Mo. 245. (7) Defendant's first and second instructions refused did not declare the law, and the third was clearly erroneous. It asserts the doctrine that, if defendant intended to kill L. T. Mathews, the father, and killed his child, it is not murder. This has never been the law. 1 Hale's Pl. Cr. 451; 4 Blk. Com. 199; 1 Whar. Crim. Law [8 Ed.] sec. 382. If one or several effect an illegal purpose, it is to be regarded as causing the resulting illegal act, as the law infers that every one intends the necessary consequences of his or their acts. Desty Crim. Law, secs. 6a, 127b; State v. Underwood, 57 Mo. 40; State v. Patterson, 45 Vt. 308; Stokes v. People, 53 N.Y. 164. All participating in such illegal act with a common intent are equally guilty. 1 Whar. Crim. Law [8 Ed.] sec. 152; Reg. v. Lee, 4 Fost. & F. 63; Reg. v. Caton, 12 Cox Cr. C. 624. If a man shoots at another with intent to kill, and kills a third person, it is murder. 4 Blk. Com. 199; Com. v. Webster, 59 Mass. 306; State v. Smith, 2 Strob. (S. C.) 77; People v. Keefer, 18 Cal. 636; State v. Cooper, 13 N. J. Law, 381; Wareham v. State, 25 Ohio St. 601; Angell v. State, 36 Tex. 542.

OPINION

Black, J.

The defendant, fifteen years of age, and his brother, William R. Payton, were jointly indicted for killing Claudie E. Mathews, an infant, on the twelfth of April, 1885. After a severance, James S. Payton was tried and found guilty of murder in the first degree.

The evidence shows that these two boys lived with their parents; L. T. Mathews resided in the same neigh-borhood, on a farm to which it seems the father of the Payton boys made some claim. There is some evidence to the effect that defendants had said they would cultivate the place, and no one else should. On the twelfth of April, 1885, at about four o'clock in the afternoon, Mathews was moving from the house on the place before referred to. He was sitting on the right-hand side of the front seat in a wagon filled with household goods. His wife was to his left, and her sister behind them, holding in her lap the child Claudie. When about a quarter of a mile from the house, two men fired one shot each from rifle guns, from behind a log not more than fifteen steps from the wagon, and then ran away. One ball struck Mr. Mathews in the breast and came out under the arm. Another passed through the head-board of a bed-stead standing in the wagon, and thence into and through the head of the child Claudie, killing it. Mr. Mathews jumped out of the wagon, when he first heard the shots, and says he watched the men who shot until they were two hundred and fifty or three hundred yards away from him. Says he knew the Payton boys well, and knows they were the persons who shot himself and child. On the next evening after the shooting the boys were arrested, and it is shown by those who assisted in making the arrest, that they and their father were then armed in an out-house. One of the parties making the arrest asked James if he did not do the shooting, when James answered: "Wouldn't you do like us, if anybody was trying to kill you?" The boys and their father then claimed that some one had exploded giant powder on a house in which they had previously resided, and they were afraid of a repetition of the same thing, and for that reason were armed and watching in the out-house. There is no evidence that Mathews threw giant powder on the house, or that he had in any way interfered with the Paytons. Defendant offered evidence tending to show an alibi, and the state offered contrary evidence in rebuttal.

1. The objection, that the record does not show that the indictment was returned into court by the foreman of the grand jury, in the presence of the jurors, cannot be sustained. The record shows that the grand jury came into open court and through the hand of their foreman returned into open court one indictment, etc. The entry is in full compliance with section 1797, Revised Statutes, 1879.

2. The next objection is, that the indictment is inconsistent, in that it charges that one mortal wound produced the death of the child, and that the wound was given by both defendants with different guns. The indictment, after alleging an assault, proceeds to state that the defendants, with rifle guns, loaded with powder and leaden balls, "him, the said Claudie E. Mathews, feloniously," etc., "by means of the powder and balls aforesaid, did shoot, penetrate and wound, and thereby then and there give to him, said Claudie E. Mathews, one mortal wound of the width," etc. There can be no doubt but the defendants were properly included in the same indictment, and both properly charged as principals. Wharton on Hom. [2 Ed.] sec. 338; secs. 1649 1811, R. S., 1879. It was said in State v. Dalton, 27 Mo. 13, if two persons are charged as principals, one as the immediate perpetrator of the injury, and the other as aiding and abetting, it is immaterial which of them is charged as having inflicted the wound, inasmuch as the law imputes the injury given by one as the act of the other. So that an indictment that A gave the blow and B was present and abetting, is sustained by evidence that B gave the blow and A was present and abetting. Now, while the indictment might have been in the form above indicated, it does not follow that the present one is bad. It was held in State v. Blan, 69 Mo. 317, that an indictment for murder in the first degree was not faulty in failing to state separately the individual acts of each defendant. And in State v. Dalton, supra, the indictment was held to be sufficient to support a conviction, though it alleged that both defendants held the same knife, club, or pistol, in the right hand. The indictment may either allege the matter according to the fact, or charge them both as principals in the first degree. State v. Anderson, 89 Mo. 312, 1 S.W. 135. In the present case it cannot be said which of the defendants fired the particular shot which killed the child, but in the...

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