State v. Garth
| Decision Date | 12 November 1901 |
| Parties | THE STATE v. GARTH, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Criminal Court. -- Hon. Jno. W. Wofford, Judge.
Affirmed.
James J. Hitt and W. O. Thomas for appellant.
(1) Two things are absolutely necessary to make a dying declaration admissible, viz.: First, the party must at least suppose himself in extremis; second, where it is possible, the exact language of the party must be given. It is not sufficient that the substance be given. (2) The admission of the alleged confession of the defendant was error. As soon as arrested the defendant was taken to the office of the prosecuting attorney. There, the paper read in evidence was prepared by the same officer who wrote the "dying declaration." There, while laboring under the excitement of a recent arrest, charged with an offense the punishment of which is death, "without a full knowledge of all the effects, and of the consequences that would result therefrom," the statement was signed. The fact, too, that he was an ignorant negro, and in the presence of an officer who was using every means to induce a confession, should have some weight. State v. German, 54 Mo. 526; State v Fredericks, 85 Mo. 145. (3) The court erred in giving instruction 2. In instruction 1 the court very properly described the offense of murder in the first degree. But when he came to apply the definition of murder to the case at bar he omitted a very essential, and we may say the most essential element, viz.: the feloniousness of the act. "Where an instruction incorrectly defines the crime of murder in the first degree, the judgment will be reversed although in another instruction given the crime is correctly defined." State v. Mitchell, 64 Mo. 191. State v. Walker, 98 Mo. 95, is not supported by the authorities cited as a precedent. Especially is the omission of the word "feloniously" from the instruction error, when we notice the definition of the words "malice aforethought" and "feloniously" as given in the first instruction. State v. Grant, 76 Mo. 247; State v. Snell, 78 Mo. 241. (4) In all criminal cases a concurrence of all twelve of the jurors is necessary, both as to the guilt and degree of that guilt. Compromise verdicts are not tolerated. Defendant's third instruction asked is undoubtedly the law. The question presented was, What caused the death of Minnie Woods? If any juror had a reasonable doubt as to whether she died from natural causes or the stab wound, then the defendant was entitled to the benefit of that doubt, and the jury should have been so told. (5) The evidence, taken as a whole, fails to show the defendant guilty of felonious, willful, deliberate murder, committed premeditatedly and of his malice aforethought. At most the evidence shows that the stab was given in the heat of passion, without any premeditation or deliberation or intention of killing. State v. Craft, 3 Kan. 451. There was that lack of evidence of deliberation and premeditation necessary to constitute murder in the first degree. State v. Davidson, 95 Mo. 95; State v. Elliott, 98 Mo. 150; State v. O'Hara, 92 Mo. 59.
Edward C. Crow, Attorney-General, for the State; H. S. Hadley of counsel.
(1) It will be seen by the questions and answers that the juror knew nothing about the case; if he had read of it he had forgotten all about it and he had formed or expressed no opinion as to the guilt or innocence of the defendant. It could have served no good purpose under these circumstances to have permitted an extended examination as to whether the juror had formed or expressed an opinion upon every possible inquiry that might be embraced in the issues to be tried, especially as the juror had already answered that he knew nothing about the case and could not even remember to have read of it. (2) The record in this case clearly shows, beyond doubt, that the deceased was stabbed; that she died of the wound. This being so, even if the juror had formed an opinion that the deceased was stabbed and died of the wound, and also that the defendant stabbed her, this would not disqualify him, because it might be the act was done in self-defense or was accidental, and hence, the defendant would not be guilty as charged. Thompson & Merriam on Jurors, sec. 217; Lowenburg v. People, 27 N.Y. 336; Olrien v. People, 36 N.Y. 276; 63 Ala. 30; 9 Ia. 188; 1 Trial of Aaron Burr, pp. 416, 417. The line of interrogation indicated by the questions put, if permitted, would tend to make such examinations interminable, without any corresponding beneficial results. State v. Munch, 57 Mo.App. 212; McComas v. Ins. Co., 56 Mo. 574. (3) The last remark of deceased is very significant. She knew the statement had been left unsigned at the time it was taken down because she then had some slight hopes of life, and that she was to sign it if she became convinced that there was no hope for her and that she believed herself to be in the immediate presence of death. It is impossible to escape from the conclusion that when she said, "If they want me to sign it I had better sign it now," she had abandoned all hope of recovery and expected death to come at any moment. This being so, the statement so signed was admissible. State v. Elkins, 121 Mo. 344; State v. Wilson, 121 Mo. 439; State v. Umble, 112 Mo. 452; State v. Evans, 124 Mo. 409; 12 Cox. C. C. 168; Young v. Com., 6 Bush, 312; Mackabee v. Com., 78 Ky. 380; Wharton Crim. Ev. (9 Ed.), sec. 287; State v. Wensell, 98 Mo. 137. (4) Defendant's third assignment of error, that the court erred in admitting the signed statement of defendant in evidence is without merit. The statement was made to and written down by Mr. Mastin, who told him that he was an assistant prosecuting attorney, and asked the defendant to tell him about the occurrence. No threats were made, no inducements held out to defendant, he was not deceived nor in any way influenced to make his statement, it was entirely voluntary. State v. McKurtz, 144 Mo. 40; State v. Vaughan, 152 Mo. 73; State v. Guy, 69 Mo. 430; State v. Rush, 95 Mo. 199; State v. McClain, 137 Mo. 307. The mere fact that a person is in charge of an officer at the time does not make a confession inadmissible. State v. Carlisle, 57 Mo. 679. (5) Defendant's fourth assignment of error is, that the court erred in rejecting testimony that the deceased was in the habit of drinking or using intoxicating liquors to excess, and the inordinate use of cigarettes. This assignment of error is unfair and not warranted by the record. This evidence was inadmissible; it was immaterial what the habits of the deceased were, or how such habits may have affected her health. The question was, did the defendant stab the deceased, and did she die from the stab wound? Nor did such evidence become admissible to show the condition of deceased at the time of her death. But if such evidence was admissible the defendant has no cause of complaint, for the reason that the court did permit the facts to be shown as to the habits of the deceased. Besides, no exception was saved to the ruling of the court on the question as to what effect drinking has upon pleurisy. (6) The certificate of death made by the coroner is inadmissible. It does not fall within the provisions of section 3098, Revised Statutes 1899. It is neither a record nor exemplification of office books kept in any public office of the United States, nor of a sister State. State v. Ragels, 9 Mo. 310. (7) The court did not err in failing to put the word "feloniously" in instruction 2, defining murder in the first degree. This court has decided this to be unnecessary. State v. Walker, 98 Mo. 95; State v. Matthews, 98 Mo. 121; State v. Wright, 134 Mo. 404. (8) Instruction 3 asked by defendant and refused by the court was, "If the jury has a reasonable doubt as to whether the death of Minnie Woods was caused by the cut and wound, then you should give the benefit of that doubt to the defendant." This is not the law. "It is well settled in Missouri, that the defendant has no right to single out each material fact, and to have the court direct the jury that if they have a reasonable doubt as to the evidence of such fact they ought to acquit." State v. Wells, 111 Mo. 536; State v. Schoenwald, 31 Mo. 147; State v. Christian, 66 Mo. 138. (9) Defendant's eighth assignment of error is mainly a claim that the defendant is not guilty of murder in the first degree, and that the court should have granted him a new trial. It is hard to find a jury with sufficient courage to convict of murder in the first degree, when the evidence fully warrants such a verdict, and the cases are rare, indeed, where the courts have to set aside verdicts of murder in the first degree because the evidence does not sustain a verdict. There was deliberation, premeditation and malice aforethought; and the stab wound given to deceased by the defendant was the cause of her death. It may have been done while the defendant was in a passion, but it was a murderous passion; not one recognized by law as lowering the grade of the homicide.
The defendant, a negro man, was indicted at the January term, 1900, of the Jackson County Criminal Court, for the murder of Minnie Woods, a negress with whom he had been living though not married to her, he having a wife and children elsewhere. Having been duly arraigned and pleaded "not guilty," defendant was placed on trial March 14, 1900, and found guilty of murder in the first degree.
The indictment is sufficient.
The evidence discloses that on the night of December 23, 1899 there was a chitterling supper and dance held at 2218 East Ninth street, Kansas City, at the house of a negro woman by the name of Henrietta Gray. The defendant seems to have become jealous of the deceased and...
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