47 S.W. 1058 (Mo. 1898), The State v. Grugin

Citation:47 S.W. 1058, 147 Mo. 39
Opinion Judge:SHERWOOD, J.
Party Name:The State v. Grugin, Appellant
Attorney:Ben Eli Guthrie, Dysart & Mitchell and Ben. Franklin for appellant. Edward C. Crow, Attorney-General, Sam B. Jeffries, Assistant Attorney-General, and W. W. Graves for the State.
Judge Panel:SHERWOOD, J. Burgess, J., concurs in toto; Gantt, P. J., does not concur as to that portion of paragraph 2.
Case Date:November 07, 1898
Court:Supreme Court of Missouri
 
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Page 1058

47 S.W. 1058 (Mo. 1898)

147 Mo. 39

The State

v.

Grugin, Appellant

Supreme Court of Missouri, Second Division

November 7, 1898

Appeal from Macon Circuit Court. -- Hon. Andrew Ellison, Judge.

Reversed and remanded.

Ben Eli Guthrie, Dysart & Mitchell and Ben. Franklin for appellant.

(1) The court takes the view and declares to the jury that excitement and agitation in the mind of the defendant and a heated state of the blood produced by lawful provocation, could only be considered in reducing the homicide from murder in the first degree to that of murder in the second degree. If such facts and state of mind existed, as assumed in the instruction, they should have been considered as reducing the offense to one of the degrees of manslaughter, if not a justification. Heat of blood, resulting from lawful provocation, excludes the idea of murder. (2) The instructions of the court broadly amount to this: That if the defendant, armed with a shotgun, went to the field of Hadley, and there shot and killed him, he was guilty of murder, notwithstanding the jury might believe all the other facts and circumstances shown in evidence; and this, whether defendant was sane or insane, capable or not capable of premeditation and deliberation; capable or not capable of distinguishing between right and wrong; capable or not capable of recognizing the right and wrong of his act and the consequence thereof; and whether or not the deceased was threatening and about to assault defendant and disarm him, and the defendant believed and had reasonable ground to believe from all the facts and circumstances shown in evidence that deceased intended and was about to inflict upon him some great bodily harm. These are facts which, if proven, go in defense, and not to reduce the grade of crime. (3) The defendant submits that the facts in this case tend to show that the defendant was either guilty of murder in the first degree, or that the killing was justifiable or excusable, and hence there was no case for an instruction on the second degree of murder. (4) Had Hadley been caught by Grugin in the assault and Grugin had shot and killed him, then there can be no doubt that he would not have been guilty of murder in either degree. His passion produced by the facts before him would have relieved him from the guilt of murder. But on defendant's theory at the time of the shooting Hadley affirmed the fact and hurled defiance at the defendant, that is, confessed the act and declared he would do it again. What difference can there be in effect on the mind between catching in the act and a defiant confession with threat of repetition? None. The latter case is worse than the former. It is more than exasperating, more humiliating and more defiant. Then take this in connection with the state of mind and the strain of the defendant at the time of this defiant confession and its possibilities upon his mind and feelings and will are beyond a definition in legal phraseology; and that condition alone is a matter of fact and should be submitted to and determined by a jury under the broadest possible instruction. State v. Taylor, 44 S.W. 785.

Edward C. Crow, Attorney-General, Sam B. Jeffries, Assistant Attorney-General, and W. W. Graves for the State.

(1) What facts will justify an assault is a question of law, which should not be submitted to the jury. State v. Hickman, 95 Mo. 322. (2) Neither is there evidence upon which to justify or require the giving of an instruction upon manslaughter in the fourth degree. The defendant's evidence was an attempt to show self-defense, but was even a failure on that line. State v. Jones, 74 Mo. 441; State v. Dunn, 80 Mo. 681; State v. Sansone, 116 Mo. 1; State v. Bulling, 105 Mo. 204. (3) The evidence totally fails to disclose that deceased was making any such demonstrations toward defendant that would lead defendant to believe that he was in danger, and it also fails to show that defendant did, in fact, believe himself to be in danger at that time. The evidence further fails to disclose any fact from which it could be concluded that defendant acted in a sudden heat of passion.

SHERWOOD, J. Burgess, J., concurs in toto; Gantt, P. J., does not concur as to that portion of paragraph 2.

OPINION

Page 1059

[147 Mo. 42] 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 [147 Mo. 43] him to the penitentiary for the term of fifteen 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 sixth 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 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., 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 forty 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 fifty years old, had been twice married, and of the first marriage there had resulted [147 Mo. 44] several children, all of them daughters and married except two, Caroline and Alma who lived at home, and a son who was about grown and also unmarried remained with his father, assisting in working the little farm.

Alma was sixteen years old in April, 1896. On the afternoon of the eighth or ninth of that month she went to the house of her brother-in-law Hadley and remained with him and her sister over night. 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 said 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 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 [147 Mo. 45] 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,'

Page 1060

he says, 'I'll take my shotgun 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...

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