The State v. Vinso
| Citation | 71 S.W. 1034,171 Mo. 576 |
| Parties | THE STATE v. VINSO, Appellant |
| Decision Date | 03 February 1903 |
| Court | United States State Supreme Court of Missouri |
Appeal from Lawrence Circuit Court. -- Hon. H. C. Pepper, Judge.
Affirmed.
Adiel Sherwood and Joseph S. McIntyre for appellant.
(1) The verdict was against the evidence and the weight of the evidence. Where the evidence is preserved in the bill of exceptions, the appellate court will inquire whether the verdict is against the evidence. State v. Fritterer, 65 Mo. 422; State v. Clarkson, 96 Mo. 364. (2) The constitutional amendment authorizing the prosecution of felonies upon information does not authorize an amended information which would be bad, even with defendant's consent, and the amendment is certainly error without notice to defendant and opportunity to be heard and without leave of court. The motion to quash should have been sustained. At common law, informations could be used only in the prosecution of misdemeanors. The statute of amendment and jeofails did not apply to criminal proceedings. 1 Bacon's Abr., Amendment and Jeofail, title C. We have no statute authorizing amendments which applies to felonies prosecuted upon information. Such a statute could not change the common-law rule, because the information provided for in the amendment of 1900, is the common-law information. State v. Russell, 88 Mo. 648; Com. v. Maher, 12 Pick. (Mass.) 120; People v. Campbell, 4 Parker Crim. Rep. (N Y.) 386; Com. v. Adams, 92 Ky. 134, 17 S.W 276. At common law the information could not be amended except upon leave of court. 1 Bishop, New Crim. Pro. (4 Ed.), sec. 714; Rex v. Wilkes, 4 Burr. 2569; King v. Goffe, 1 Lev. 189; Anon., 1 Salk. 150; State v. White, 64 Vt. 372. And after notice to defendant. King v. Goffe, 1 Lev. 189. Which practice is followed in Missouri in prosecutions for misdemeanors upon information. State v. Bragg, 63 Mo.App. 27; George v. Middaugh, 62 Mo. 551. Certainly if an amendment of an information for a misdemeanor can not be made without a statute (such as we have) authorizing the same and even then notice and opportunity to be heard and leave of court are essential, an amendment of an information for the commission of a felony can not be amended without notice and without leave -- when there is no statute. (3) There was no evidence of deliberation and the court should have so instructed the jury. All the evidence in the case goes to show that defendant was in a violent passion, excited state of mind and a hot condition of blood at the time the rock was thrown; laboring under these conditions it was impossible for plaintiff to have been in a cool state of blood, and since the evidence shows that plaintiff threw the rock under great excitement, violent passion, extreme fear and mutual combat, the court should have instructed the jury that the element of deliberation was not present. It was incumbent on the State to show both premeditation and malice. State v. Crawford, 115 Mo. 630; State v. Rose, 142 Mo. 425. (4) Even though deceased did not participate in the previous encounter between defendant and Tate, testimony relating to such encounter was admissible and competent for the purpose of showing that defendant was not in cool state of blood. Where two persons, upon a sudden quarrel, engage in mutual combat and one of them is killed in the heat of passion, the offense is at least manslaughter. State v. Davidson, 95 Mo. 155; State v. Dieckman, 11 Mo.App. 538, 75 Mo. 570. (5) Defendant was entitled to instructions on manslaughter in both the third and fourth degrees. Where, upon a trial for murder, there is evidence given tending to show that deceased used personal violence towards the accused, the court should, by proper instructions, define the crime of manslaughter as well as murder and excusable homicide, though the defense fails to ask such instruction. State v. Branstetter, 65 Mo. 149; State v. Petit, 119 Mo. 410; State v. Talmage, 107 Mo. 543; State v. Curtis, 70 Mo. 594; 2 Bishop's New Cr. Law, sec. 701. Passion aroused by provoking words alone, accompanied by an attempt to take life, is manslaughter under our statute. State v. Berkley, 109 Mo. 665; State v. Elliott, 98 Mo. 150; State v. Wilson, 98 Mo. 440; State v. Goddard, 146 Mo. 180; State v. Partlow, 90 Mo. 616. Defendant may be guilty of manslaughter in the fourth degree even though he intended to kill; if he acted without malice and in the heat of passion and not in self-defense, he is guilty of manslaughter in the fourth degree, even though he willfully killed deceased. State v. McKinzie, 102 Mo. 632; State v. Brown, 104 Mo. 373; State v. Talmage, 107 Mo. 570.
Edward C. Crow, Attorney-General and C. D. Corum for the State.
(1) The information is sufficient. State v. Worton, 139 Mo. 532. (2) The appellant's first complaint arises because the court permitted the prosecuting attorney to file an amended information. The objection and exception must be bottomed on the ground that an amended information can not be filed under any circumstances. But the law is otherwise. In filing informations for felonies, the prosecuting attorneys of this State are governed by the rules of the common law. State v. Kyle, 166 Mo. 287; Hughes' Criminal Law and Practice, sec. 2776; 1 Bishop's Criminal Practice (2 Ed.), sec. 1215. (3) It will be seen that the State, over the objection of the defendant, was permitted to prove that immediately after the defendant had assaulted Ward, he also attempted to strike Kelley with a knife. This evidence was competent as a part of the res gestae. This was the only objection to any testimony in the case. State v. Matthews, 98 Mo. 125; State v. Sanders, 76 Mo. 35. (4) No motive for this murder was apparent. But the defendant should not be acquitted for that reason. It is not incumbent on the State to show the motive for the commission of murder. State v. Foley, 144 Mo. 620; State v. David, 131 Mo. 380. (5) The "defendant requested the court to declare the law to be that if defendant killed deceased while in a heat of passion, the jury could not convict of murder in the first degree, although the jury believed defendant did not believe or have good reason to believe that deceased was present at the difficulty at the bridge." This request must have been made upon the theory that if defendant was in a violent passion from any cause, or without cause, at the time he killed deceased, he was guilty of no greater crime than manslaughter. The evidence in this case, in our opinion, makes out a case of murder in the first degree. The deceased said nothing to arouse the passions of the defendant. He did nothing. He was unoffending. The annals of criminal jurisprudence do not furnish a more astounding example of a brutal and causeless murder. There does not appear to be a single palliating circumstance. The defendant's mission was murder. He addressed witness Ellis in the most insulting language and applied to him the epithet most calculated to offend and produce trouble. The remarks were wholly uncalled for. If man ever had a "heart regardless of social duty and fatally bent on mischief," such heart must beat in the breast of defendant. It seems incredible to believe that a sane person could be guilty of such atrocity. There was no lawful or other provocation for the deed. His passion was not suddenly aroused. The court did not err in failing to instruct on manslaughter. State v. Crawford, 115 Mo. 620; State v. Barutio, 148 Mo. 249; State v. Kloss, 117 Mo. 591; State v. Lewis, 118 Mo. 79; State v. Swannagun, 109 Mo. 233. The instructions fully covered the case, and if they had not, the attention of the trial court was not directed to such omission and the point can not be first raised here. State v. Albright, 144 Mo. 642.
At the March term, 1902, of the Lawrence Circuit Court, the prosecuting attorney of said county filed an information charging the defendant, John Vinso, with murder in the first degree, of William Walter Ward, at said county on October 13, 1901.
On October 23, 1901, the defendant had been committed on his preliminary examination to await the action of the circuit court, and on October 26, 1901, the prosecuting attorney filed an information in the clerk's office, charging the defendant with murder, and at the November term, 1901, defendant was duly arraigned thereon, and the cause on defendant's application was continued to the March term, 1902.
At the March term, 1902, the prosecuting attorney, by leave of the court, filed the new information on which defendant was tried and convicted. As this information is in all respects sufficient, it is not deemed necessary to copy it in this statement.
The defendant filed his motion to quash this information on the ground that it was filed without warrant or authority of law, which motion was overruled, and defendant saved his exception. The defendant was then duly arraigned on said second information.
The testimony discloses that William Walter Ward was a young man about twenty-four years old. He was a switchman on a railroad at Dallas, Texas, at the time he was killed by defendant, but had been to Missouri on a visit to his father and mother, who resided at or near Monett. It appears that he came from Texas about Thursday or Friday preceding his death on Sunday, October 13, 1901. He had come to Pierce City that day, between one and two o'clock, to visit his brother. He went up into the city and was gone about thirty minutes and the remainder of the time he spent with his brother at his house and then walked over with him to the station to return to Monett. A short time after deceased reached the depot and while talking to his brother, Harry Kirk and others, the defendant came walking to the station from the east. A freight train...
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