State v. Hermann

• Citation: 117 Mo. 629,23 S.W. 1071
• Parties: STATE v. HERMANN et al.
• Decision Date: 09 November 1893
• Court: United States State Supreme Court of Missouri

23 S.W. 1071

117 Mo. 629

STATE v. HERMANN et al.

Supreme Court of Missouri, Division No. 2.

November 9, 1893.

MANSLAUGHTER — FOURTH DEGREE — PRINCIPALS — EVIDENCE — DECLARATIONS.

1. On a prosecution for the killing of a person while present at a fight between J. and G., testimony as to what B. said to J. with regard to G. in the presence of deceased was properly excluded, there being no pretense that deceased said anything that might characterize his subsequent conduct.

2. Manslaughter in the fourth degree being the intentional killing of a human being in the heat of passion, on a reasonable provocation, without malice, and without premeditation, and under circumstances that will not render the killing justifiable, or (Rev. St. § 3476) the involuntary killing of another by a weapon or by means neither cruel nor unusual, in the heat of passion, in any case other than justifiable homicide, — where two persons ran together to the scene of a fight, and one of them, shouting, "Shoot them down!" threw a club at a person present, which knocked him down, and the other grabbed him as he attempted to rise, and struck him, the two may be equally guilty, though the blow which caused death was that received from the club first thrown.

3. The exclusion of a conversation between deceased and one of those engaged in the fight occurring prior thereto cannot be treated as error in the absence of evidence as to the nature of the conversation.

Appeal from circuit court, Linn county; G. D. Burgess, Judge.

Joseph Hermann and Baptiste Hermann were convicted of manslaughter, and appeal. Affirmed.

O. F. Smith and Crawley & Son, for appellants. R. F. Walker, Atty. Gen., and Morton Jourdan, Asst. Atty. Gen., for the State.

GANTT, P. J.

At the adjourned term of the Chariton county circuit court the grand jury returned an indictment against the defendants. It consisted of two counts. The first count charged defendants, Joseph and Baptiste Hermann, with murder in the second degree in the killing of one Joseph A. Brown on the 13th of December, 1890. The second charged Baptiste Hermann with being accessory to the crime. At said term defendants were arraigned, and each for himself entered a plea of not guilty. They jointly filed their application and affidavit for a change of venue, which was allowed, and the cause ordered transferred to the Linn circuit court, held at Brookfield, Mo. At the February term of the Linn circuit court, held at Brookfield, the cause was continued, upon the application of defendants, until the regular September term, 1891, at which term the defendants were tried, convicted of manslaughter in the fourth degree, and their punishment assessed at two years in the penitentiary. After unsuccessful motion for a new trial and in arrest, they appealed to this court.

The evidence tended to prove these facts: That on the 13th day of December, 1890, the defendants, the deceased, and several other parties attended a turkey shooting match on the farm of the widow Grotjon in Chariton county, Mo. That during the progress of the shooting match a dispute arose between Bates Johnson and Ed. Grotjon, which resulted in a fight between these two parties. Others soon participated in the trouble, and when one Henry Laker ran in, the deceased, Joe Brown, told him to stand off. The defendants then came running up, one with a club and the other with a shotgun. Joe Hermann laid down his gun, and picked up a club, which he threw at and struck Joe Brown on the left side of the head. From the effects of the blow Brown staggered and fell, when Baptiste Hermann jumped up and grabbed Brown, and struck him three or four licks in the face with his fist. All the parties then stopped fighting, and Brown started home in company with the negro boy, Hez Moore, who lived with his father. Along the road Brown was compelled to sit down and rest, and complained of a very serious pain in his head. After going home he retired, and remained in bed three or four hours, when, from the effects of the blow with the club, he died. The doctors (the coroner and his assistant) who held an autopsy found under the skull bone a clotted mass of blood. They testify that death resulted from concussion occasioned by the blow. The defendants were both arrested the same night, about midnight, by sheriff Anderson, to whom each of them denied the fact that Joseph Hermann had thrown the club, but said to the sheriff that Henry Laker had thrown the club that struck Brown and knocked him down. Upon the trial of the case defendants testified that Joseph Hermann threw the club; that at the time he did so Brown was advancing upon him with a club raised; that it was thrown in self-defense. They are, however, contradicted by other witnesses, who all say that Brown was standing perfectly still at a distance variously estimated from 5 to 15 feet away; that the two Hermanns ran up to where the fight was in progress between Johnson and Grotjon, and that defendant Joseph Hermann said: "Shoot them down, every one of them!" It also appears from the testimony that when the difficulty first arose Brown was at the barn, some distance from the place of quarrel. Baptiste Hermann was a son-in-law of Mrs. Grotjon, and resided on her farm at the time of the killing. The rulings of the court will appear in the further discussion of the assignments of error.

1. During the cross-examination of the witness Johnson Burnett, counsel for defendants asked him if he communicated to Bates Johnson anything Ed. Grotjon had said about the turkeys. The objection of the prosecuting attorney to the question as irrelevant was sustained. Witness was then asked if he made any kind of communication to Bates Johnson with regard to Ed. Grotjon in the presence of deceased. The objection to this was also sustained. No offer was made to show what the communications were, or how they were material to the issue on trial. What Burnett said to Bates Johnson was foreign to the case. The question did not disclose anything that was material, and the answers were properly excluded. There was no pretense that the deceased said or did anything there that might characterize his subsequent conduct. State v. Douglass, 81 Mo. 231.

2. It is next insisted that the court should have directed a verdict of acquittal as to Baptiste Hermann, and the refusal of the circuit court to so instruct, either at the close of the state's case or after all the evidence was in, is urged as error. There is much evidence that Joseph and Baptiste Hermann came on the scene simultaneously, Joseph armed with a gun, Baptiste with a club; that Joseph laid down his gun and took up a club, which he threw at and struck the deceased, Brown, on the left side of the head. There was evidence that this club was a deadly or dangerous weapon. Baptiste was present. He heard his brother shout, as they ran together to the place of difficulty between Johnson and Grotjon, "Shoot them down, every one of them!" After this he saw his brother assault Brown, the deceased, with a club, and knock him down. There is evidence, then, that as the deceased attempted to rise the defendant Baptiste, to use the language of the witness, "grabbed him, and commenced to hit him." Another witness says, "...