State v. Bailey

• Decision Date: 06 June 1905
• Parties: STATE v. BAILEY.
• Court: Missouri Supreme Court

88 S.W. 733

190 Mo. 257

STATE v. BAILEY.

Supreme Court of Missouri, Division No. 2.

June 6, 1905.

1. HOMICIDE—INFORMATION—INFLICTION OF WOUND—SUFFICIENCY OF ALLEGATION.

An information alleging that defendants, having in their hands a pistol loaded with gunpowder and leaden bullets, did feloniously, etc., discharge and shoot off the same at, upon, and against deceased, and him, the said deceased, with the leaden bullets aforesaid, out of the pistol aforesaid, by the force of the gunpowder aforesaid, by the said defendant shot off and discharged as aforesaid, then and there feloniously, etc., on purpose, etc., did strike, penetrate, and wound the said deceased in and upon the body of him, the said deceased, thereby giving to him, the said deceased, with the leaden bullets aforesaid, so as aforesaid discharged and shot off out of the pistol aforesaid by the said defendants, one mortal wound, sufficiently charges defendants with having inflicted the wound upon deceased from which he died.

2. INFORMATIONS—VERIFICATION—REPETITION OF VENUE.

Where an information and verification are upon the same sheet of paper, and the venue is laid in the caption of the information, and the affidavit is taken and certified by the clerk of the criminal court of the county stated in the caption, it is unnecessary for the venue to be repeated in the verification.

3. CRIMINAL LAW—TRIAL—EXCEPTIONS TO TESTIMONY—NECESSITY OF SAVING.

Objections and exceptions to rulings made during the trial must be made when the rulings are made, and the grounds of objection must be stated, in both civil and criminal cases; and while the circuit court of a county may, if it wishes, dispense with the rule, yet the fact that it does so imposes no necessity on the criminal court of that county to do likewise, so as to put it in error in denying a motion to permit exceptions to be saved without announcing the same to the court at the time.

4. SAME—WITNESSES—INDORSEMENT ON INFORMATION.

Under Rev. St. 1899, § 2517, requiring the names of all material witnesses to be indorsed on the indictment, but providing that other witnesses may be subpœnaed and sworn by the state, it was not error to permit the state to call and examine witnesses whose names were not indorsed on the information, where the prosecuting attorney served defendant's counsel with a list of names of the additional witnesses before the examination of witnesses had begun, and the additional witnesses were well-known parties and easily accessible to defendant, and yet defendant neither asked for a continuance, nor for time in which to investigate concerning such witnesses.

5. SAME—EVIDENCE—RELATED OFFENSES.

In homicide, where the crime grew out of a hack drivers' strike, defendant being a union and deceased a nonunion man, and the state's evidence showed that defendant procured deceased to drive defendant and his companions to a remote part of the city for the purpose of beating deceased and killing him if he resisted, whereas defendant's testimony was that he was merely enjoying a hack ride and going to get some drinks when he was set upon by deceased, testimony that earlier in the evening of the homicide defendant and his associates had procured another nonunion hack driver to take them to another remote portion of the city, and had there forcibly assailed him and taken from him the pistol with which they afterwards killed deceased, was competent.

6. SAME—STATEMENTS OF DEFENDANT—COMPETENCY TO SHOW MOTIVE.

In homicide, where the crime grew out of a strike, a statement of defendant, one of the strikers, made on the day of the homicide and subsequent thereto, that the only way to win was by shooting people, and that all non-union men, to which class deceased belonged, should be killed, was competent to show motive and intent.

7. SAME—HARMLESS ERROR.

In homicide, the admission in evidence of a vile epithet applied by defendant, after the killing, to nonunion hack drivers, to which class deceased belonged, was not ground for reversal.

8. HOMICIDE—INSTRUCTIONS—PROVOKING DIFFICULTY.

In homicide, a charge that if defendant voluntarily brought on the difficulty with deceased or voluntarily entered into a difficulty with deceased "with the intention of killing or inflicting upon him some great bodily injury," then the danger in which he found himself would not extenuate or mitigate his offense or raise the issue of self-defense, was a correct statement of the law of provoking the difficulty, and was not subject to the objection that the quoted clause applied only to its immediate antecedent and not to both the antecedent hypotheses.

9. SAME—CONDITIONAL FELONIOUS INTENT.

In homicide, a charge that, if defendant voluntarily brought on the difficulty with the intention of killing deceased or inflicting upon him some great bodily injury "if he should resist," the danger in which he found himself would not mitigate his offense or raise the issue of self-defense, was not subject to the objection of predicating a "felonious intent upon condition."

10. SAME—CONFLICTING INSTRUCTIONS.

In homicide, where the state's evidence showed that defendant went to a remote part of the city with deceased for the purpose of doing him great bodily harm and killing him if he resisted, while defendant's testimony was that the killing was done purely in self-defense, a charge that, if defendant voluntarily brought on the difficulty with the intention of killing deceased, the issue of self-defense was not raised, was not in conflict with instructions on self-defense predicating that right on an absence of original intention on defendant's part of killing or seriously injuring deceased, and an assault committed by deceased on defendant with a revolver.

11. SAME—WITHDRAWAL FROM DIFFICULTY—INSTRUCTIONS.

In homicide, where the state's evidence was that defendant brought on the difficulty with the felonious intention of beating deceased in order that he might have an excuse for killing him, and defendant's testimony was that deceased assaulted defendant entirely without provocation and defendant killed deceased in self-defense, and there was no evidence whatever of the beginning of a contest by defendant and withdrawal therefrom prior to the killing, a charge that if defendant provoked the difficulty with deceased without felonious intent, intending merely an ordinary battery or disturbance of the peace, whereupon deceased attacked defendant and compelled the latter, in order to save his own life, to take that of deceased, defendant would be guilty of manslaughter merely, was properly refused.

12. SAME—INSTRUCTIONS—ACCOMPLICE'S TESTIMONY.

In homicide, a charge specially singling out a prostitute who had accompanied defendant on the occasion of the killing, and who testified as a witness, and telling the jury to take into consideration what weight ought to be given to her testimony, was properly refused, where the only evidence tending to show that the witness was an accomplice was her own, and according to that, she did not join in defendant's purpose, but was protesting against it.

13. SAME—SELF-DEFENSE—PROVOCATION OF DIFFICULTY—NECESSITY OF DEFINING.

The terms "self-defense" and "bring on the difficulty," as used in the law of homicide, are self-explanatory, and need not be specifically defined in instructions.

Appeal from Criminal Court, Jackson County; John W. Wofford, Judge.

Edgar G. Bailey was convicted of murder, and appeals. Affirmed.

Williamson & Brooker, W. F. Riggs, and I. B. Kimbrell, for appellant. H. S. Hadley, Atty. Gen., and N. T. Gentry, for the State.

GANTT, J.

On the 19th of April, 1904, there was filed in the criminal court of Jackson county, by the prosecuting attorney of said county, an information charging the defendant, Edgar G. Bailey, James Forsha, and William Moon, jointly, with the murder in the first degree of Albert Ferguson, by shooting him with a pistol on the 19th day of March, 1904, in said Jackson county. Upon the application of the defendants a severance was granted, and the state elected to try Edgar G. Bailey first. The trial began on the 27th of June, and ended on the 21st of July, 1904, and resulted in a conviction of defendant Bailey of murder in the first degree. From that conviction he has appealed to this court.

The information is as follows:

"State of Missouri, County of Jackson— ss.: In the Criminal Court of Jackson County, Missouri, at Kansas City, Missouri, April Term, A. D. 1904. Now comes Roland Hughes, Prosecuting Attorney for the State of Missouri, in and for the body of the County of Jackson, and upon his official oath informs the court, that Edgar G. Bailey, James Forsha and William Moon, late of the county aforesaid, on the 19th day of March, 1904, at the County of Jackson, State of Missouri, in and upon one Albert Ferguson then and there being feloniously, wilfully, deliberately, premeditatedly, on purpose and of their malice aforethought did make an assault; and a certain revolving pistol, which was then and there loaded with gunpowder and leaden bullets, and by them the said Edgar G. Bailey, James Forsha and William Moon in their hands then and there had and held, they, the said Edgar G. Bailey, James Forsha and William Moon, did then and there feloniously, wilfully, deliberately, premeditatedly, on purpose and of their malice aforethought, discharge and shoot off at, upon and against him the said Albert Ferguson; and him the said Albert Ferguson, with the leaden bullets aforesaid out of the pistol aforesaid, then and there, by force of the gunpowder aforesaid, by the said Edgar G. Bailey, James Forsha and William Moon shot off and discharged as aforesaid, then and there feloniously, wilfully, deliberately, premeditatedly, on purpose and of their malice aforethought, did strike, penetrate and wound the said Albert Ferguson in and upon the body of him, the said Albert Ferguson, thus and thereby, then and there feloniously, wilfully,...