24 S.W. 1038 (Mo. 1894), The State v. Young

Citation:24 S.W. 1038, 119 Mo. 495
Opinion Judge:Gantt, P. J.
Party Name:The State v. Young, Appellant
Attorney:H. J. Drummond and W. M. Boulware for appellant. R. F. Walker, Attorney General, and Morton Jourdan, Assistant Attorney General, for the state.
Judge Panel:Gantt, P. J. Burgess and Sherwood, JJ., concur.
Case Date:January 31, 1894
Court:Supreme Court of Missouri
 
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Page 1038

24 S.W. 1038 (Mo. 1894)

119 Mo. 495

The State

v.

Young, Appellant

Supreme Court of Missouri, Second Division

January 31, 1894

Appeal from Marion Circuit Court. -- Hon. R. F. Roy, Judge.

Reversed and remanded.

H. J. Drummond and W. M. Boulware for appellant.

(1) The examination of defendant before the coroner and jury of inquest was not competent evidence against him, and its admission, against objection, was error. State v. Mullins, 101 Mo. 514; State v. Clifford, 53 N.W. 299; State v. Hobbs, 17 S.E. 380; State v. Row, 46 N.W. 872; People v. Mondon, 103 N.Y. 211; Day v. State, 63 Ga. 667; Wood v. State, 3 S.W. (Tex.) 336; State v. Coffee, 16 A. 151; State v. Young, 1 Wins. (N. C.) 126; Josephine v. State, 39 Miss. 613; People v. McMahon, 15 N. Y. (1 Smith) 384; U. S. v. Williams, 1 Cliff. C. C. Rep. 5; Clough v. State, 7 Neb. 320. (2) Defendant's offer of proof by witness Turpening was competent, and its rejection error. The principle is thoroughly recognized by the leading courts of America, that where the inquiry concerns one's intention, not only his acts and conduct, but his declarations made at or about the time when such intention is alleged to have existed, are admissible and have independent competency as evidence. Com. v. Trefethin, 31 N.E. 961; Ins. Co. v. Hillman, 145 U.S. 285; Hunter v. State, 40 N. J. L. 495; U. S. v. Penn. 13 Bankr. Reg. 464; State v. Garrand, 5 Or. 216; Price v. State, 72 Ga. 441; Railroad v. Herrick, 29 N.E. 1052; Schlemmer v. State, 15 A. (N. J.) 836; Johnson v. State, 15 S.W. 647. (3) The judgment of divorce and alimony rendered against deceased and in favor of his wife, was competent evidence, and the rejection thereof was error. The circumstances of the death suggested the theory of suicide, and it is well known that ill health, financial troubles and domestic unhappiness are among the most fruitful causes of self-destruction. State v. Leutz, 45 Minn. 177. (4) The court erred in the instructions given of its own motion. The declaration as to the presumption of innocence is not sufficiently comprehensive. The presumption remained during the trial and deliberation of the jury in aid of the defendant, in determining both the existence of the evidentiary facts and the inference to be drawn from the body of evidence. And the court ought to have so instructed the jury. State v. Young, 99 Mo. 666. (5) The declaration concerning the burden of proof is incomplete and defective. It ought to have informed the jury as to the degree of certainty required in the proof of the particular or evidentiary facts to authorize them to be considered as part of the body of the evidence. A fact can not be inferred as the basis of a further inference. It is not permitted to ground an inference upon an inference. People v. Ah Chung, 54 Cal. 398; Harrison v. State, 6 Tex.App. 42; Black v. State, 1 Tex.App. 368. (6) The instruction as to reasonable doubt is erroneous. The instruction in declaring that the doubt must arise from the evidence, withdrew the attention of the jury from the want of evidence of the state, or its weakness, and directed it to the strength of defendant's evidence, as the required source of the acquitting doubt. If it were thought necessary to define the source of the doubt, the instruction ought to have embraced in its terms the weakness of the state's evidence, as well as the strength of the evidence of defendant, as a permissible source. State v. Woolard, 111 Mo. 248; Fletcher v. State, 17 S.E. 100; Hodgkins v. State, 15 S.E. 695; Lewis v. State, 15 S.E. 697; State v. Wells, 111 Mo. 533; U. S. v. Newton, 52 F. (D. C.) 275; Wright v. State, 69 Ind. 163; Densmore v. State, 67 Ind. 306; U. S. v. Harper, 33 F. 471; Carr v. State, 37 N.W. 630. (7) Instruction number 10, given by the court on motion of the state, was erroneous. According to it, the fact that defendant stated the facts contained in his statements to be true, is not evidence of their truth. Welsh v. State, 11 S. Rep. (Ala.) 450; Welsh v. State, 12 S. Rep. (Ala.) 275; Conner v. State, 34 Tex. 359; Perego v. Purdy, 1 Hilton (N. Y. C. P.) 269; Futch v. State, 16 S.E. 102; Furst v. State, 47 N.W. 1116; Daniels v. State, 78 Ga. 98; Jones v. State, 13 S.W. 990; State v. West, Houst. Crim. C. (Del.) 371; Slade v. State, 16 S.W. 253; Eiland v. State, 52 Ala. 322; Barnes v. Allen, 1 Abb. App. Dec. (N. Y.) 111; Griswold v. State, 24 Wis. 144. (8) The evidence does not sustain the verdict.

R. F. Walker, Attorney General, and Morton Jourdan, Assistant Attorney General, for the state.

(1) The court did not err in rejecting the challenge of jurors. State v. West, 69 Mo. 402; R. S. 1889, sec. 4195. (2) The examination of defendant before the coroner was properly admitted in evidence. State v. Mullins, 101 Mo. 514. (3) The testimony of the witnesses Turpening and Burblinger was properly excluded. (4) The judgment of divorce and alimony rendered against deceased was also rightly excluded. (5) The instructions are in the approved form, and rightly declare the law. (6) The evidence supports the verdict. State v. Richardson, 23 S.W. 769; State v. Herrman, 22 S.W. 1072; State v. Banks, 22 S.W. 1079; State v. Moxley, 22 S.W. 575; State v. Burd, 22 S.W. 377; State v. Jackson, 106 Mo. 181; State v. Orrick, 106 Mo. 111; State v. Howell, 100 Mo. 628; State v. Lowe, 93 Mo. 547; State v. Hicks, 92 Mo. 432; State v. Gann, 72 Mo. 374; State v. Musick, 71 Mo. 401; State v. Hammond, 77 Mo. 158.

Gantt, P. J. Burgess and Sherwood, JJ., concur.

OPINION

[119 Mo. 500] Gantt, P. J.

The defendant is charged with the murder of his father, Ludwig Young, on the fifth day of December, 1892. He was indicted at the April term 1893, of

Page 1039

the circuit court of Marion county and was tried in June, 1893, and convicted of murder in the first degree. He assigns various errors, which will be examined.

The evidence discloses the following facts: The deceased, Ludwig Young, was a German, thought by some to be between fifty and sixty years of age, by others, much older. Eight or ten years prior to his death he bought a farm near the village of Benbow in the northwest corner of Marion county and had moved to it from Quincy, Illinois. He was twice married. The defendant, Jacob Adam Young, usually known by the name of Adam, was and is his only child by his first marriage. No children were born of the second marriage. Adam was in his nineteenth year at the time of his father's death. Five or six years before the death of Ludwig Young, his second wife left him and remained separated from him. After she left, the deceased and Adam remained on the farm together until October preceding the old man's death, when Adam also left. From the time Adam left, the old man lived on the farm entirely alone.

Early in the morning of Monday, December 5, about 8 o'clock, Mr. Killebrew, a neighbor on the adjoining farm, saw the deceased driving his wagon eastward through his farm. He was never seen alive after this by any witness in the case. On the following day (Tuesday, sixth of December) about noon, a young man, Forest Darr, called at Mr. Young's house for the purpose of paying some interest on a note held by Mr. Young against his father. After hallooing and getting no response and failing to find Mr. Young in the fields, he returned to Benbow, where he met a group of persons. [119 Mo. 501] One of the persons inquired whether he had found Mr. Young and was answered in the negative. It was thought proper that search be instituted to see if Mr. Young could be found, and the person making the inquiry, with another, went to Mr. Young's house for that purpose. Finding the outside of the house locked they entered through a shed room, the door of which was without lock. Passing from the shed into the room adjoining (the kitchen) they found a boot with a sock in it sitting by a chair. After passing from the kitchen into and through all the rooms except the southeast room, that being a general lumber room, they opened a door leading into it, when they saw the body of Mr. Young lying upon the floor. They were able at that time to distinguish but little in the room as it was without light. The room had only one small window and the curtain at that was down. In the passage into or from the room in which the body was found four doors intervened. All the doors were found closed.

These persons having made known their discovery, about 2 o'clock of that day (Tuesday, Dec. 6) a number of persons collected at the house and the situation was more accurately observed. That situation was in substance as follows: The body was lying on the floor of the southeast room about midway between the north and south walls; the head towards the west and the feet towards the east. The room was eleven by eleven and one half feet in size. The body was lying upon the back. The head was lying back of a large basket which was pretty well filled with onions, potatoes and sundry pieces of carpet, sacks and rags over them, the right leg was bent or drawn up at the knee; the left leg was extended upon the floor; the right arm was across or on the body and the left arm was extended or partially extended by the body on the [119 Mo. 502] floor. On the left of the body lay a double-barreled shot gun -- lengthwise with the body -- the muzzle towards the head. Defendant's witness, Turpening, states that the gun was between the left arm and the body, and the muzzle near the armpit. No other witness spoke definitely as to its position. This gun was old man Young's gun. It was a large-bored, heavy and long gun. The length of its barrel was estimated to be thirty-six inches. Both barrels of the gun were empty. One barrel (the right) had been recently discharged -- there was part of a freshly burnt cap on the tube, and the insertion of a finger in the muzzle...

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