25 S.W. 895 (Mo. 1894), State v. Fairlamb

Citation:25 S.W. 895, 121 Mo. 137
Opinion Judge:Burgess, J.
Party Name:The State v. Fairlamb, Appellant
Attorney:T. G. Rechow and Upton & Skinker for appellant. R. F. Walker, Attorney General, and Morton Jourdan, Assistant, for the state.
Case Date:March 13, 1894
Court:Supreme Court of Missouri
 
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Page 895

25 S.W. 895 (Mo. 1894)

121 Mo. 137

The State

v.

Fairlamb, Appellant

Supreme Court of Missouri, Second Division

March 13, 1894

Appeal from Polk Circuit Court. -- Hon. Argus Cox, Judge.

Reversed and remanded.

T. G. Rechow and Upton & Skinker for appellant.

(1) There was no evidence to warrant an instruction for murder in the first degree. The killing was not by means of poison, lying in wait, or in the attempt to perpetrate any of the five felonies mentioned in section 3459, Revised Statutes, nor by any means or in any mode ejusdem generis therewith. It is settled law in Missouri that "where general words follow special words" in a statute, the latter must be limited to the same generic character or class of things mentioned in the specific words. St. Louis v. Laughlin, 49 Mo. 559; Grumley v. Webb, 44 Mo. 444; Sandiman v. Beach, Barn. & Cress., 96. (2) The word deliberately was improperly defined "in cool state of the blood." Am. and Eng. Encyclopedia of Law, title, Deliberation; State v. Lewis, 74 Mo. 222; State v. Andrews, 76 Mo. 101; State v. Stephens, 96 Mo. 637; State v. Avery, 113 Mo. 475; State v. O'Hara, 92 Mo. 59. (3) The court erred in the matter of giving and refusing instructions. (4) The decision in State v. Hopper, 71 Mo. 425, construing Revised Statutes, 1889, section 3461, is unsound and should be reviewed. (5) The court erred overruling defendant's challenges of the jurors Waterhouse and Scott. They were not entitled to vote and were not citizens. (6) The jurors were improperly permitted to separate during the trial. (7) The court improperly excluded the deposition of Ida Wells, Harry Wells, Calvin Stiles, and A. J. Snow, each of said witnesses having admitted giving and signing said deposition. Pruitt v. Martin, 59 Mo. 325; 1 Greenleaf on Evidence [5 Ed.], sec. 463; Norris to use v. Brunswick, 73 Mo. 258; Wilkerson v. Eilers, 114 Mo. 252. (8) The verdict should not be permitted to stand, because of improper remarks of the attorney for the state in his argument to the jury. State v. Ulrich, 110 Mo. 365; State v. Warford, 106 Mo. 55; State v. Young, 105 Mo. 634; State v. Young, 99 Mo. 666; State v. Jackson, 95 Mo. 623. (9) The motion in arrest of judgment should have been sustained for the following reasons: First. Because the indictment does not charge the assault to have been feloniously made, unless the word "feloliously" is to be tortured into feloniously. Second. Because it does not charge the wounding to have been done feloniously, willfully, deliberately, premeditatedly and of malice aforethought. This is required to make a good indictment. State v. Feaster, 25 Mo. 324; State v. Murdock, 9 Mo. 739; State v. Carron, 51 Mo. 26; State v. Emerich, 87 Mo. 110; State v. Herrell, 97 Mo. 105; State v. Clayton, 100 Mo. 517; State v. Green, 111 Mo. 588. The last case cited is decisive of this. Third. The indictment is not in the English language as required by statute. "Feloliously" can not be tortured into feloniously. "Nilfully" is not willfully, and "nith" is not with, and "neapon" is not weapon, nor is "nound" wound. These incongruities make the indictment bad. 1 R. S. 1889, sec. 3240; State v. Mitchell, 25 Mo. 420; State v. Carpary, 11 Rich. (N. C.) 356; State v. Cartar, 2 Harvy (S. C.) 140. Fourth. Because the assault is alleged to have been made on Wells, while it is alleged that "Wills" was wounded and killed. "Wells" and "Wills" are not idem sonans. They do not mean the same, nor are they of the same derivation; nor have they by long continued usage, corruption or abbreviation been pronounced the same. Whelen v. Weaver, 93 Mo. 432, and authorities supra.

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

(1) The court did right in confining the instructions to murder in the first degree and self-defense. State v. Reed, 22 S.W. 886; State v. Turlington, 102 Mo. 662; State v. Smith, 114 Mo. 406; State v. Umble, 115 Mo. 452; State v. Bulling, 105 Mo. 204; State v. Bryant, 102 Mo. 24. (2) The word "deliberately" was correctly defined. State v. Avery, 113 Mo. 495. (3) The court did not err in the matter of giving and refusing instructions. (4) Defendant's challenges of the jurors Waterhouse and Scott were properly overruled. Revised Statutes, 1889, sec. 6060; State v. France, 76 Mo. 682; State v. Pagels, 92 Mo. 308. (5) Alleged separation of the jury is not sufficient to cause a reversal. State v. Orrick, 106 Mo. 127; State v. Sansone, 22 S.W. 617; State v. Howell, 23 S.W. 263. (6) Nor do the remarks complained of by state's attorney as improper require a reversal. State v. Young, 105 Mo. 634. (6) The indictment was sufficient. Revised Statutes, 1889, sec. 3459. The mere misspelling of words does not vitiate it. (7) This court will not interfere with the verdict of the jury because of the insufficiency of the evidence unless there is a total failure of proof, and where the conclusion must be reached from reading the testimony that the jury was actuated by prejudice or passion. State v. Richardson, 23 S.W. 769; State v. Herrman, 22 S.W. 1072; State v. Banks, 22 S.W. 1079; State v. Moxley, 115 Mo. 644; 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.

OPINION

Page 896

[121 Mo. 142] Burgess, J.

Defendant was convicted of murder of the first degree in shooting with a shotgun and killing one George C. Wells. Deceased had won some money on a horse race, in which defendant claimed to have an interest and over this matter a controversy arose between them in which the homicide occurred.

Deceased had promised to meet defendant at a hotel in the city of Bolivar at night to settle up the matter where defendant waited for him until after 10 o'clock, and, he failing to appear, defendant went to his home, got a single-barreled repeating shotgun, and went out to the fair grounds near Bolivar where the deceased and his wife and child were living in a horse stall; and two young men, one Harry Wells, his stepson, and Calvin Stiles, were occupying another stall adjoining thereto. The fair ground's gate is on the west side of the fair ground. The stall in which Wells was staying is seventy-five yards north of the gate, which is between the stalls and the city. Defendant, in going to the stall where Wells was, went by the gate. When defendant got near the stall, he called Wells up, who put on his clothes, and told defendant to go down to the gate. The fair grounds are inclosed by a tight board fence eight feet high. Defendant was on the outside and Wells on the inside. The gate was locked. Wells and defendant went to the gate, Mrs. Wells, Harry Wells and Stiles followed. Arriving at the gate, Harry Wells at the request of the deceased, unlocked it, when defendant and deceased engaged in a conversation about the money. The gate did not swing upon hinges, but was a sliding gate and hung on rollers.

[121 Mo. 143] Defendant said to deceased: "You was not down at the hotel." Deceased said he could not come down because the baby was sick. Defendant said: "Wells, I want to get that money and also an order on Parks." Deceased said: "I won the money fair and square, and I ought to keep it," when the defendant replied: "I have got to have that money to-night." Deceased said: "You had better wait until morning, and we can settle;"...

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