State v. Hopper

Decision Date30 April 1880
Citation71 Mo. 425
PartiesTHE STATE v. HOPPER, Appellant.
CourtMissouri Supreme Court

Appeal from Dade Circuit Court.--HON. JNO. D. PARKINSON, Judge.

AFFIRMED.

J. B. Upton for appellant.

J. L. Smith, Attorney-General, for the State.

HENRY, J.

Defendant jointly with one Earnest and Robertson, was indicted in the Cedar circuit court for the murder of Samuel C. Ham. At the October term, 1879, of the circuit court of Dade county, to which the cause, as to Hopper and Robertson, was removed on change of venue, there was a trial, which resulted in the acquittal of Robertson, and the conviction of Hopper of murder of the first degree. From the judgment against him he has appealed to this court.

1. THE INDICTMENT.

The motion to quash the indictment was overruled, and this is assigned as error. It charges in appropriate language and with the requisite particularity, that Earnest murdered Ham, and then concludes as follows: “And the jurors aforesaid, upon their oaths aforesaid, do further present that James Robertson and J. B. Hopper, then and there feloniously, willfully, deliberately, premeditatedly, and of their malice aforethought, were present helping, abetting, assisting, comforting and maintaining the said S. T. Earnest in the felony and murder aforesaid, in manner and form aforesaid to do and commit, and the jurors aforesaid do say that the said S. T. Earnest, James Robertson and J. B. Hopper, him the said Samuel C. Ham then and there in manner and form aforesaid, feloniously, willfully, deliberately, premeditatedly and of their malice aforethought, did kill and murder, against the peace and dignity of the State of Missouri.” Defendant's counsel contend that the indictment contains two counts, and that the first fails to conclude “against the peace and dignity of the State,” while the second, which alone connects Hopper and Robertson with the killing, fails to charge the time, place and manner of killing. It is, however, but one count alleging in the first place, with all the particularity and formality requisite, that Earnest murdered Ham, and then charging that the other defendants were present aiding and abetting him. The motion to quash was properly overruled.

2. CHANGE OF VENUE: subpœna.

Nor was there any error in refusing to order an attachment against Eliza Bradshaw, a witness for defendant. The only cause alleged for an attachment was that she had been served with a subpœna issued by the clerk of the circuit court of Cedar county, after a change of venue was awarded to Dade county. The order changing the venue conferred jurisdiction of the cause upon the Dade circuit court, and it was from that time pending in that court. Henderson v. Henderson, 55 Mo. 535. The subpœna was, therefore, a nullity. On producing the order changing the venue, the clerk of the Dade circuit court could have issued a subpœna in the cause.

3. PRACTICE, CRIMINAL: attachment of witnesses.

On a motion for a new trial, affidavits were read for the purpose of showing that at the October term of the Dade circuit court, Mrs. Bradshaw was recognized to appear as a witness for defendant the January adjourned term; and if that fact, which did not appear of record, had been alleged and established, as a ground for the attachment when it was asked, it would have been error to refuse it. It was not, however, relied upon, but after the attachment was refused defendant read as the testimony of Mrs. Bradshaw what he stated on his affidavit then made for a continuance, she would testify to if present.

4. ____: witnesses.

At the commencement of the trial the witnesses were “put under the rule,” and directed to converse with no one concerning the case, and to disclose no facts within their knowledge except to attorneys on the side for which they had been respectively subpœnaed. Of this defendant complains, but we see no objection to it. The object was to prevent the witnesses from informing each other what their testimony had been, or would be, and this would be frustrated if they were permitted to tell it to other persons who could communicate it to the witnesses. It is a salutary practice, especially in criminal cases, and intended to prevent collusion and concert among witnesses to harmonize their testimony.

Defendant also complains that Mrs. Ham was allowed to testify to a conversation between the three men and her grand-children, when, from her own story, it appeared that she was then at the cane-mill, some distance away, and did not pretend to hear the conversation. There is no foundation in fact for this complaint. Mrs. Ham stated that she and Mr. Ham “started down to the molasses-mill to get some wood. Just then three men rode up and met the children at the gate,” when the conversation alluded to occurred. They were not at the mill, but had started to go there, and just then the men came up to the gate. She testifies as if she heard the conversation, and the contrary does not appear.

5. ______: harmless error in admitting evidence.

Nor should the judgment be reversed on account of the admission of the testimony of J. B. Smith, that he heard that Ham had talked of buying Duke's farm, and that Lucy Ann Smith, with whom Duke was living, was a sister of defendant Robertson. Robertson, the brother, seemed not to have been injured by it, as he was acquitted.

6. ______: withdrawing evidence by instruction.

Moreover, the jury were instructed to disregard it in their deliberations; and while this would not cure the error of admitting evidence improperly, which was of a character to prejudice the defendant's cause; yet it suffices when it is evident that the testimony did not, or was not of a character to prejudice the party against whom it was admitted.

Nor was there error in overruling the motion to discharge Robertson.

7. ____: murder.

With regard to the second, third, fourth and eleventh instructions, declaring a homicide committed in the attempt to perpetrate a robbery, murder in the first degree, we have only to reiterate what was said on that subject in the Earnest case, 70 Mo. 520. See also Wharton on Homicide, §§ 184, 185, 186, 187. The statute does not declare that every killing in the perpetration, or attempt to perpetrate a rape, robbery, &c., shall be murder, but that “any murder which shall be committed * * in the perpetration of, or attempt to perpetrate any arson, rape, robbery, burglary or mayhem, shall be deemed murder in the first degree.” It is not a definition, but a classification of the offense. Those homicides which are made murder in the first degree by our statute, are only such as were murder at common law, and are only mentioned in section 1232 for the purpose of classification, not of definition. The statute of New York differs from ours in that it makes the killing of a human being “when perpetrated without a design to effect death, by a person engaged in the commission of any felony,” murder in the second degree. That is both a definition and a classification of the crime. Adjudications under that statute are, therefore, not applicable to cases arising under ours.

8 HARMLESS ERROR IN INSTRUCTIONS.

The instructions were erroneous, but harmless, for if Ham was killed as alleged, the men who killed him were guilty of murder, without reference to an attempted robbery. He was not killed by accident, but aside from any purpose to rob, the killing was deliberate, willful and premeditated. Proper instructions as to murder, without reference to the attempted robbery, were given by the court.

The criticism by defendant's counsel of the tenth, thirteenth, fourteenth, fifteenth and sixteenth instructions given for the State, is without merit.

9. INSTRUCTION as TO ADMISSIONS.

The twelfth instruction, to the effect that if the jury found that any admissions or statements were made by either of defendants against his interest, such statements or admissions were evidence against him, could not possibly have injured the defendant. If none were proved, then the jury could not possibly have found that there were any. If any were proved, the instruction was proper. If the instruction had contained the substance of a specific admission or statement, it would be different.

The sixth and seventh instructions, asked by defendant and refused, were substantially given in the ninth for the State, and...

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