State v. Brown

• Decision Date: 23 March 1904
• Parties: THE STATE v. BROWN, Appellant
• Court: Missouri Supreme Court

79 S.W. 1111

181 Mo. 192

THE STATE v. BROWN, Appellant

Supreme Court of Missouri, Second Division

March 23, 1904

Appeal from Jackson Criminal Court. -- Hon. Jno. W. Wofford, Judge.

Affirmed.

R. J Holmden for appellant.

(1) The statement made by the prosecuting attorney when examining jurors as to their qualifications to sit in the case commencing with, "The evidence in the case will tend to show," was all improper, but inasmuch as most of the facts stated did not prejudice the rights of appellant we do not object to them. However, the closing remark of this statement, viz., "that Laura Hiblar was killed while sleeping in her bed," was a breach of professional ethics so highly improper and prejudicial to the rights of appellant that it ought not to be tolerated in any court of justice. It is true that the objection was sustained by the trial court and the matter ruled out, but this was not sufficient. The prosecuting attorney should have been instantly and severely reprimanded by the court, and because of its failure so to do appellant is entitled to another hearing. State v. Stubblefield, 157 Mo. 365; State v. Prendible, 165 Mo. 329; State v Meysenburg, 171 Mo. 1. (2) Evidence as to whether appellant was drunk on the night, a few hours before the killing, should have been admitted for the purpose of showing that he was in such condition when he committed the act that he did not have sufficient capacity of mind to deliberate, thus lowering the crime from murder in the first to murder in the second degree. The "statement" of the facts in the case shows that there was admitted by trial court the evidence of many witnesses to the effect that on numerous occasions they had seen appellant under the influence of liquor, all showing him to be a confirmed drunkard. (3) The evidence as to how appellant acted when drunk; if he was a drunken man, and whether he was drunk or sober the night before the killing; also evidence of Dr. Sheling as to the effect of alcohol upon the human mind, and the responsibility of a person for acts done while under the influence of intoxication and who has long been a drunkard, should have been admitted for the purpose of proving that appellant not only did not have the capacity to deliberate at the time of the killing, but that he was in such a condition he could not have known the difference between right and wrong of the act he committed. At any rate the jury should have been permitted to hear this evidence, instructed by the court, as requested, and allowed to deliberate and pass upon this question. State v. Potts, 100 N.C. 460; People v. McElvaine, 125 N.Y. 596; State v. Reed, 41 La. Ann. 582; R. S. 1899, sec. 2561. The evidence shows appellant to have been a confirmed drunkard and that such continued drunkenness was sufficient to affect in a marked degree his mental faculties. State v. Lowe, 93 Mo. 552; State v. Duestrow, 127 Mo. 72; State v. Hundley, 46 Mo. 414; State v. Riley, 100 Mo. 499. (4) Appellant, after stating that he had gone home late at night and found the door locked and wife and child in bed, was asked these questions: "What did you have a hatchet for?" and "Didn't you have a hatchet?" Counsel for defense objected to the first question when asked, but the record does not so show. The court, however, sustained the objection and ruled out the testimony. This was not sufficient; the prosecuting attorney should have been instantly and severely reprimanded. The State having asked the questions of appellant as to the striking of the girl, he should have been permitted to say whether she had called him a son-of-a-bitch before. The purpose of this was to show that he had once struck her and that it was for calling him this name. A father has the right to reasonably punish his child. State v. Prendible, 165 Mo. 359; State v. Lockett, 168 Mo. 489; State v. Duestrow, 137 Mo. 86; State v. Blitz, 71 S.W. 1029. (5) The court erred in allowing the prosecuting attorney to make the statement with respect to appellant's "skulking around like a hyena." The animal referred to is one of the most treacherous and cowardly known, and though the prosecutor did not directly call appellant a hyena, the broad inference was easily understood by the jury, and the remark was abuse. If the direct calling of defendant by such name is abuse and error, then the indirect method is also abuse. One poisons as much as the other. State v. Jackson, 95 Mo. 653; State v. Young, 99 Mo. 683; State v. Ulrich, 110 Mo. 365; State v. Fishcer, 124 Mo. 464; State v. Bobbst, 131 Mo. 339; State v. Prendible, 165 Mo. 359; State v. King, 74 S.W. 630. (6) The instruction asked by appellant on motive should have been given. State v. David, 131 Mo. 397; State v. Foley, 144 Mo. 621; State v. Evans, 158 Mo. 609; State v. Brown, 168 Mo. 471; State v. Tettaton, 159 Mo. 368; State v. Hathron, 166 Mo. 240; State v. Coleman, 20 S.C. 441; People v. Ah Tung, 17 Cal. 379. (7) The court erred in refusing instructions 7 and 8 asked by the defense. (a) No. 7 asks the court, among other things, to instruct the jury that the epithet addressed by deceased to appellant was an opprobrious one. The court in an instruction on behalf of the State told the jury "that opprobrious epithets or insulting gestures when applied to a person constitute a just cause of provocation to passion," but did not define the term "opprobrious epithet." The words used by deceased constituted an opprobrious epithet and the court should have so instructed the jury. The State contended that the girl was killed while sleeping; the defense claimed that she addressed to appellant the epithet mentioned and that he was in a heat of passion and drunk when act was committed. On this theory the trial was conducted and this phase of the case should have been presented to the jury. (b) Instruction 8 asked by appellant was in reference to drunkenness. With few exceptions this court has held on numerous occasions that "voluntary drunkenness constitutes no excuse or extenuation for the crime of murder. It is not even competent for the jury's consideration on the question of defendant's deliberation, premeditation or willfullness." Counsel for appellant, however, considers the facts of this case, and the numerous authorities holding the opposite view, sufficient to ask the court to again consider this question. The first case seemingly in this State is that of State v. Schaller, 14 Mo. 502, where the almost universal ruling on the question seems to have been first laid down. However, there is a little law during this long period of time upholding our contention. It appears from earnest investigation that Missouri now stands almost alone in her position on this important question, and if it be true an overwhelming array of authority supports our contention, and that such doctrine is supported by sounder reason, then it should be changed. Law is general, so wide that even our sovereign State must yield to its influence. State v. Cross, 27 Mo. 339; State v. Edwards, 71 Mo. 326; State v. Sneed, 88 Mo. 142; Hopt v. People, 104 U.S. 634; O'Grady v. State, 36 Neb. 320; Gomer v. Florida, 152; Jones v. State, 29 Ga. 594; 103 Ala. 72; 156 Ind. 435; 8 Lea (Tenn.) 376; 37 Kan. 369; 8 Tex.App. 35; 63 Conn. 388; 1 Marv. (Del.) 492; 165 Ill. 618; 1 Dak. 189; 103 Ia. 168; 88 Ky. 29; 25 Ore. 401; 1 Spier (S. C.) 384; 3 Smeed & M. (Miss.) 518; 10 P. 359; 9 Humph. (Tenn.) 570; 148 Pa. 26; 43 Ohio 332; 3 Wyo. 110; 28 Minn. 426; Thacher Crim. Cas. (Mass.) 163; 32 Gratt. (Va.) 929; 48 Mich. 495; 82 Wis. 23; 95 Cal. 425; 32 La. 1086; 54 Ark. 283; 148 N.Y. 476; 17 Wash. 499; 60 N. J. L. 171.

Edward C. Crow, Attorney-General, and C. D. Corum for the State.

(1) No request was made to the trial court to rebuke or reprimand the prosecutor, and no exception was taken to the failure of the court to do so. Had the defendant desired a reprimand to be administered, then was the golden opportunity to have made such request, and to have preserved his exception, had the request been refused. State v. Gartrell, 171 Mo 489. (2) The court permitted both the State and defendant to show that the defendant was under the influence of intoxicating liquor on the day of the murder, and defendant was permitted to show, by several witnesses, that he frequently got drunk. The defendant offered to prove by several other witnesses that he was drunk on the evening before he murdered his stepdaughter. The murder occurred during the morning. No error was committed in excluding this testimony. How could it affect his case, whether he was drunk or sober, on the day prior to the killing? Such evidence was wholly incompetent and tended to prove no issue. The court did right in excluding it. (3) On cross-examination, the prosecuting attorney interrogated the defendant in reference to a hatchet. The defendant had not been examined concerning a hatchet during his direct examination. The court, of its own accord, eliminated such evidence from the record. No objection was made to the evidence by the defendant. If it had been made, the voluntary action of the court shows that the objection would have been sustained. The defendant having failed to object, and except to this matter in the trial court, can not raise the question here. State v. McCollum, 119 Mo. 496; State v. Waters, 62 Mo. 196; State v. Nocton, 121 Mo. 537; State v. Higgins, 124 Mo. 640; State v. Foster, 115 Mo. 448; State v. Rapp, 142 Mo. 443. (4) Witness S. H. Woodson testifies that the general reputation of the defendant in the community where he lived was good. On cross-examination he was asked if he had not heard that the defendant had struck the deceased in the mouth prior to the killing. The question was admissible to test the means of knowledge of the witness as to the reputation of the...