The State v. Burns
| Decision Date | 21 February 1899 |
| Parties | The State v. Burns, Appellant |
| Court | Missouri Supreme Court |
Appeal from Scott Circuit Court. -- Hon. Henry C. Riley, Judge.
Affirmed.
Albert De Reign for appellant.
(1) In view of all the circumstances and facts in the case, the verdict of the jury was against the evidence, taking the evidence in its most damaging features against the defendant and if no errors had been committed by the court in the trial of the cause, he should have been convicted of murder in the second degree only. (2) The indictment is fatally defective because it fails to allege the mortal wounding of deceased with the necessary averments; it fails to state, as it ought to, that the alleged mortal wound, which caused the death of deceased, was inflicted deliberately, premeditatedly, and with malice aforethought, by the defendant. State v Herrell, 97 Mo. 105. (3) The court also committed error in permitting the prosecution to introduce irrelevant and incompetent testimony in cross-examining defendant's mother. Clara Hunter's testimony was wholly incompetent and very prejudicial to the defendant. If the Burns woman had admitted making the statement attributed to her by the Hunter woman it would have been wholly irrelevant and incompetent, as it would have been no part of the res gestae. State v. Snell, 78 Mo. 240; State v. Rider, 95 Mo. 474; State v. Hughes, 71 Mo. 633; State v. Elkins, 101 Mo. 344. If the statement of the Burns woman was incompetent and not relevant to the issue (which it was not), then it was not subject to impeachment. 1 Greenl. on Ev., sec. 462; Ern v. Rubinstein, 72 Mo.App. 343; State v. Hughes, 71 Mo. 633. (4) The instruction on motive is bad because its terms are too general and indefinite. The court tells the jury that, "If the defendant killed his wife because of jealousy entertained towards her, then he is guilty of murder in the first degree." This virtually told the jury that they could find the defendant guilty of murder in the first degree, upon the element of jealousy alone, and without finding the element of deliberation, premeditation, etc. State v. Martin, 74 Mo. 547. (5) The court ought to have set aside the verdict and granted the defendant a new trial, because the record does not show the verdict to be the unanimous decision of the jury. The verdict has but the signature of one member of the jury of twelve. It ought to show that it is the verdict of the twelve men who tried the accused. Sec. 28 of the Bill of Rights. The verdict of a jury prior to the adoption of the Constitution is defined as, "the unanimous decision made by a jury and reported to the court on the matter lawfully submitted to them in the course of a trial of a cause." 2 Bouvier's Law Dic., 622. (6) The court also erred in not granting defendant a continuance. The application shows good grounds why the case should have been continued. He was indicted at one term of court and tried at the next. The defendant being in jail, used all diligence in his power to prepare for trial, but was greatly prejudiced in not having sufficient time to procure the attendance of important witnesses in his behalf by the court's refusal to postpone the trial. State v. Bradley, 90 Mo. 160; State v. Dawson, 90 Mo. 144.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
(1) Where an inference of guilt can be drawn from the evidence, the finding of the jury will not be disturbed on the ground of insufficiency of the same to support the verdict. State v. Banks, 118 Mo. 117; State v. Cantlin, 118 Mo. 100; State v. Moxley, 115 Mo. 644. (2) The indictment is good in every part. The assault, the shooting and the mortal wounding are respectively charged with having been done feloniously, premeditatedly, deliberately and with malice aforethought. State v. Herrell, 97 Mo. 185; State v. Burnnest, 81 Mo. 119; State v. Hughes, 82 Mo. 86; State v. McDaniels, 94 Mo. 471; State v. Turlington, 102 Mo. 647; State v. Kindred, 148 Mo. 270. (3) Defendant's mother was an important witness in his behalf, and had her testimony shown the same fact about which she was questioned, as shown by the statements made to Clara Hunter, it would have been material to the case and a part of the res gestae on the questions of deliberation and premeditation. In this case the witness was no party to the homicide, and the statement upon which the impeachment was based was a material question. The previous statement of the witness, and about which she was questioned, being relevant to the issues involved, no error can be assigned. 1 Greenl. on Ev., sec. 462. (4) The granting of a continuance is a matter resting largely in the wise discretion of the trial court. It does not appear that such discretion was in any manner abused. The evidence set up in the application would not have been admissible, nor would it have been of material benefit to defendant, though admitted. (5) Defendant was entitled to have the jury "polled," but unless he so requested, it was altogether unnecessary.
The defendant, a negro man, was convicted in the circuit court of Scott county, of murder in the first degree, and appeals from the sentence.
The defendant and his wife, Mag Burns, resided with the defendant's mother in the town of Commerce, in Scott county. They had been married about two years. The evidence shows defendant had maltreated his wife and she had left him several days prior to the twenty-fourth of July, 1897.
On the morning of that day the wife called upon the constable, Mr. Watson, and requested him to go with her to her husband's home to get her clothing, saying she was afraid to go by herself, that he would kill her. The constable accompanied her. The defendant was not at home when they first went to the house.
The constable asked defendant's mother to give the wife her clothing, but she refused. While they were talking in the yard in front of the house, defendant returned and the constable told defendant what they wanted. He replied "all right," passed into the house and soon emerged with a double barrel shot gun in his hands and opened fire, first shooting the constable and as his wife ran he shot her in the back, the load going entirely through her body. The constable managed to get back to the marshal's office, and sent him to arrest defendant. The defendant's wife died almost instantly in the garden of the lot on which she was shot.
At the October term, 1897, the grand jury returned the following indictment:
"The grand jurors for the State of Missouri, duly impaneled, charged and sworn to inquire within and for the body of Scott county, Missouri, upon their oaths present and charge that one Will Burns, at the county of Scott and State of Missouri, on the 24th day of July, A. D. 1897, in and upon one Mag Burns, then and there being, feloniously, willfully, premeditatedly, deliberately, on purpose and of his malice aforethought, did make an assault, and with a dangerous and deadly weapon, to wit, a shotgun loaded then and there with powder and leaden balls, which he, the said Will Burns, in his hands then and there had and held at and against her, the said Mag Burns, then and there feloniously, willfully, premeditatedly, deliberately, on purpose and of his malice aforethought, did shoot off and discharge, and with the shotgun aforesaid and the leaden balls aforesaid, then and there feloniously, willfully, premeditatedly, deliberately, on purpose and of his malice aforethought, did shoot, strike, and penetrate and wound her, the said Mag Burns, in and about a vital part of the body of her, the said Mag Burns, to wit, in the back part of the body of her, the said Mag Burns, giving to her, the said Mag Burns, at the said county of Scott, and State of Missouri, on the said 24th day of July, 1897, with the dangerous and deadly weapon, to wit, the shotgun aforesaid, and the powder and leaden balls aforesaid, in and upon the back part of the body of her, the said Mag Burns, one mortal wound, of the width of about one inch, and of the depth of about three inches, of which said mortal wound she, the said Mag Burns, at the county of Scott and State of Missouri, on the said 24th day of July, 1897, then and there of the mortal wound aforesaid instantly died; and so the grand jurors aforesaid do say that he, the said Will Burns, her, the said Mag Burns, in the manner and by the means aforesaid, feloniously, willfully, premeditatedly, deliberately, on purpose and of his malice aforethought, at the said county of Scott and State of Missouri, on the said 24th day of July, A. D. 1897, did kill and murder against the peace and dignity of the State."
The court, on application of defendant, appointed counsel to defend him. The cause was continued on application of defendant to the April term, 1898. At the April term a motion to quash the indictment was filed, heard and overruled.
Another application for continuance was filed on account of...
To continue reading
Request your trial