State v. Grugin

• Decision Date: 07 November 1898
• Parties: STATE v. GRUGIN.
• Court: Missouri Supreme Court

47 S.W. 1058

147 Mo. 39

STATE v. GRUGIN.

Supreme Court of Missouri, Division No. 2.

November 7, 1898.

HOMICIDE — PROVOCATION — RAPE OF DAUGHTER — INSOLENT WORDS — QUESTIONS FOR JURY — INSTRUCTIONS — MANSLAUGHTER.

1. Where it appeared in evidence, in a trial for murder, that defendant was informed, on the day of the homicide, at about 9 or 10 o'clock in the forenoon, that his infant daughter had been ravished by deceased, about a month previously, and that, at about 3 or 4 o'clock in the afternoon, defendant went a distance of about three miles, to the place where deceased was working, and shot and killed him, it was error to charge that the jury should find defendant guilty of murder, on finding such facts, and that such act was committed by defendant in consequence of anger engendered by such report of the rape of his daughter, and of his belief of such report, as the effect of such evidence to reduce the grade of defendant's crime from murder to manslaughter should have been submitted to the jury.

2. Such instructions were also erroneous, in that they dictated to the jury, as a matter of law, what was a sufficient provocation for the act of defendant, and what was a sufficient cooling time for the passion excited by the information communicated to him, which were questions for the jury.

3. Such instructions were also objectionable as commenting on the evidence.

4. Instructions that mere excitement or agitation does not destroy the element of deliberation in murder in the first degree, and that, in passing on defendant's motives and intentions, and the reasonableness and good faith thereof, the jury should take into consideration any agitation and excitement, if such were shown, were inconsistent, and calculated to mislead.

5. Where there were no "indications of brutality and atrocity" attending a homicide, unless a homicide effected by means of a shotgun, at close range, is necessarily brutal and atrocious, the use of such terms in an instruction was erroneous.

6. Where defendant, who had been informed that his infant daughter had been ravished by his son-in-law, while on a visit to him and her sister, called on the perpetrator of the outrage, and inquired of him why he had done so, and, on receiving the insolent and defiant reply, "I'll do as I damn please about it," shot and killed him, the question whether such words constituted a reasonable provocation should have been left to the jury, with an instruction that, if they should so find, then defendant was guilty of no higher offense than manslaughter in the fourth degree.

7. Defendant, on being informed that his infant daughter had been ravished by deceased, went to see the latter, with the avowed purpose of placing him under arrest, and, on receiving an insolent and defiant reply to a question respecting such criminal conduct, shot and killed him. On the trial of defendant for murder, the "previously chaste character" of his daughter having been shown, an instruction, on his behalf that, if the jury believed from the evidence that deceased had intercourse with such daughter at the time in question, and that she was then unmarried, of previously chaste character, and under the age of 18 years, then deceased was guilty of a felony, even though they should find that she consented to such intercourse, was refused. Held, that such instruction should have been given, with the addition that, if deceased had committed such deed, then defendant, having probable ground to suspect him of being guilty, had the right to arrest him, as his right to be there for such purpose, if he went in good faith to arrest him was not affected by the fact that he shot deceased in hot blood, because of his aggravating language.

Gantt, P. J., dissenting.

Appeal from circuit court, Macon county; Andrew Ellison, Judge.

Sealous Grugin was convicted of murder in the second degree, and he appeals. Reversed.

Ben Eli Guthrie, Dysart & Mitchell, and Ben Franklin, for appellant. The Attorney General, Sam. B. Jeffries, and W. W. Graves, for the State.

SHERWOOD, J.

The appeal in this instance is taken by defendant from the judgment of the trial court, which, based on the verdict of the jury, adjudged and sentenced him to the penitentiary for the term of 15 years, as punishment for the crime of murder in the second degree. The indictment was for murder in the first degree. There had been a mistrial, at the end of which defendant was admitted to bail in the sum of $5,000.

Briefly told, the substance and general outline of the evidence is this: Jeff Hadley, who was killed on the 6th of May, 1896, had, about a year prior to that date, induced Louella, one of the daughters of defendant, to run away with him and get married. This was done after defendant, not liking the bad habits of Hadley, had forbade him to visit his house. These circumstances naturally produced bad blood between the parties, and gave rise to reciprocal threats being made by them; defendant, on the occasion of the daughter being carried away by Hadley and married, remarking: "It looks like I ought to take my gun and go kill him," or words to that effect. On his part, Hadley was not backward in making threats respecting his recalcitrant father-in-law, by exhibiting a knife and revolver, and inquiring how they would do for "Old Seal," etc. These threats of Hadley's had been told to defendant. Time went on, however, and occasionally Louella would visit her old home, and on perhaps two occasions her husband accompanied her, and on one occasion she visited the house of her father, the Sunday before the homicide, which occurred on Wednesday, and took dinner there. Defendant had also visited his daughter perhaps once or twice, and taken a meal or two with her, her husband being present. The families lived something over two miles apart, and both were by no means in affluent circumstances. Defendant owned, and lived on, a little place of his own, and Hadley had rented a 40 of his wife's brother-in-law, who lived also on the same place, and about a quarter of a mile distant. Defendant was about 50 years old, and had been twice married; and of the first marriage there had resulted several children, — all of them daughters and married, except two, Caroline and Alma, who lived at home, and a son, about grown, and also unmarried, who remained with his father, assisting in working the little farm. Alma was 16 years old in April, 1896. On the afternoon of the 8th or 9th of that month she went to the house of her brother-in-law Hadley, and remained with him and her sister overnight. It is alleged that during the night he ravished her. On her return home the next day she had evidently been weeping, and her sister Caroline, with whom she slept, frequently would be awakened nights by her sister's crying, and, finding her weeping, would ask what was the matter, when she, without reply and still weeping, would turn her face to the wall. This continued for several weeks. On the Sunday next before Wednesday, May 6, 1896, Alma, who was not permitted to meet George Stephens, her betrothed, at her father's, met him at R. S. Tate's, her mother's father, and there, without grossness, she imparted to him the secret of her sad story. Receiving this information, Stephens conveyed it the same day to Dan Tate and John Tate, the uncles of Alma, and also to Ransford, her brother. By Wednesday morning following, the information of the matter had reached the ears of R. S. Tate, the grandfather, who came down to the field on his place where Stephens was at work, and there, at his request, Stephens told what he had heard to the grandfather, and to Web Morse, who was with the latter. Tate, the grandfather, not being on good terms with defendant, and thinking it best he should be informed of the matter in hand, asked Morse to go over to Grugin, who was something about three quarters of a mile distant at work in his field, and tell him about it. Morse, accordingly, taking with him Ancil Milan, as Tate asked him, went and delivered the message of old man Tate. Morse, speaking of this message to Grugin, said: "I told Mr. Grugin that the report was that Jeff Hadley had ravished his girl about four weeks ago up at his house; that we didn't know whether he knew it or not, and that Mr. Tate wanted me to tell him." It was about 9 o'clock in the morning when this message was delivered. Morse states that its delivery "seemed to hurt defendant dreadfully." "He wanted to know how I got it. I says, `Your son knows it, and my boy knows it;' and he said, `My son? You fellows stay here, and I will go and see my boy.' The boy was out of sight, over the hill." When defendant reached the place where his son was plowing, and asked him about the truth of the report, his son replied, "Pa, it must be so." Receiving this answer, defendant, greatly agitated, told his son to "turn out; that our family is ruined." Proceeding with his story, Morse says: "He went over, and directly he came back. Tears were running down his eyes, and he was terribly red in the face. He was crying. He says, `Boys, it is so; Ransford says it is so;' and he says, `I will take my shot gun, and go and kill him.' Then we tried to pacify him, but it didn't seem to do very much good. After he said he would kill him, we told him that he hadn't better do it; that the thing was not positive. I told him it was not proof, — it was not proven that it was so yet. I says, `How will you find out?' He says, `I will go to the house, and Caroline will tell me.'" Leaving the field where Morse was, between 10 and 11 o'clock, defendant went up to his house to see his daughter Caroline, and Morse returned to old man Tate, and told him he had delivered his message. Defendant, on reaching his house about 11 o'clock, spoke to Caroline, and requested her to ask Alma if the report about Hadley and herself was true, when she replied it was, and Alma, a few minutes afterwards, reaffirmed the same thing to her father. Her fa...