State v. Jackson

Citation9 S.W. 624,96 Mo. 200
PartiesThe State v. Jackson, Appellant
Decision Date12 November 1888
CourtUnited States State Supreme Court of Missouri

Appeal from Saline Criminal Court. -- Hon. John E. Ryland, Judge.

Affirmed.

Boyd & Sebree for appellant.

(1) The evidence offered by the state showed that the killing of Dodson by defendant was in defense of defendant's person from an assault made upon and danger threatened to defendant by one Dick Green, while deceased was holding defendant; and it was the duty of the court to have directed the jury, at the close of the state's evidence, to return a verdict of not guilty, as requested by defendant. Wharton's Prac and Plead., secs. 708, 812, 813; State v. Daubert, 42 Mo. 245. (2) The first and second instructions for the state should not have been given. The evidence of the state showed that there was no deliberation and no malicious intent, so that if there was any crime it was manslaughter and not murder, and the court should have instructed for manslaughter in second and third degrees. R. S. 1879, secs 1243, 1244; State v. Branstetter, 65 Mo. 154; State v. Hill, 69 Mo. 451; State v. Ellis, 74 Mo. 207; State v. Umfried, 76 Mo. 404; State v. Jones, 64 Mo. 391; State v. Green, 66 Mo 631; State v. Foster, 61 Mo. 550; State v. Rider, 95 Mo. 474. (3) The instruction for manslaughter in fourth degree should not have been given. If there was any crime, it was manslaughter in either second or third degree. R. S. 1879, secs. 1243, 1244. (4) Under all the evidence the verdict should have been for acquittal. While the different witnesses appear to differ in reference to particulars of the occurrence, yet when all the evidence for the state is considered, it clearly appears which witnesses were right, and that the killing was in self-defense.

B. G. Boone, Attorney General, for the State.

(1) Appellant did not complain of the excusing or exclusion of Davidson from the array until after verdict. Objections to the summoning or empaneling of jurors must be made at the time. State v. Collins, 86 Mo. 245. Even when taken in time, such objections will be disregarded unless it appears that defendant has suffered prejudice. State v. Ward, 74 Mo. 253. (2) Instructions were given for murder in the first and second degree, manslaughter in the fourth degree and other formal instructions required to be given in criminal cases. From the simple act of killing the law presumes murder in the second degree. State v. Gassert, 65 Mo. 352, and cases cited. The intention to kill, which is of the essence of murder in the second degree, clearly appears from the evidence in this case. State v. Gassert, supra. The giving of any instruction in this case for a grade of homicide lower than murder in the first and second degree was erroneous. As defendant was not convicted of any grade of manslaughter he will not be heard to complain. State v. Dunn, 80 Mo. 681. (3) Where it is sought to contradict a witness by the contents of a writing signed by him he cannot be asked as to statements which counsel may suggest are contained in such writing, but the instrument itself should be put in evidence. State v. Matthews, 88 Mo. 121, 125; 1 Greenl. Ev. (14 Ed.) sec. 463. (4) The action of the trial court in overruling the demurrer to the evidence was proper. This court will not reverse a judgment because it is against the evidence, unless there is a total lack of evidence or it fails so completely to support the verdict that the necessary inference is that the jury acted from prejudice or partiality. State v. Musick, 71 Mo. 401; State v. Warner, 74 Mo. 83; State v. Johnson, 81 Mo. 60. (5) The law in regard to the empaneling of jurors is directory. If the record shows that the trial panel was qualified and it does not appear that defendant was prejudiced, he will not be heard to complain because the court, without cause, excused or excluded from the array certain persons before the trial panel was selected. Thomp. & Mer. on Juries, sec. 259; State v. Matthews, 88 Mo. 121; State v. Gleason, 88 Mo. 582; O'Brian v. Iron Works, 7 Mo.App. 257; Ochs v. People, 14 West. Rep. 679.

Norton, C. J. Ray, J., absent.

OPINION

Norton, C. J.

At the September term, 1887, of the Saline county criminal court, defendant was indicted for murder in the first degree for killing one Green Dodson, and one James Shoat was included in said indictment, charged with being present, aiding and assisting defendant. The trial on said indictment resulted in the acquittal of Shoat and the conviction of defendant for murder in the second degree, his punishment being assessed at imprisonment in the penitentiary for twenty years. From this judgment defendant has appealed, and seeks a reversal on the alleged ground that there is no evidence to sustain the verdict, that the court erred in excluding a qualified juror from composing one of the panel, and also erred in giving and refusing instructions.

Dodson, the deceased, was killed by defendant on the thirtieth of July, 1887, at a picnic and dance of colored people on the premises of one Dick Green in Saline county. The evidence on the part of the state tends to show the following facts, viz: That defendant came to the place of the picnic and dance, about dark of the day of the homicide; that a platform for dancing had been erected; that quite a large number of persons had assembled; that defendant, soon after his arrival, created some disturbance, and was approached and quieted by the deceased; that thereafter, defendant said to a girl or woman on the dancing platform, "God damn it, if you don't want to dance with me, you can go to hell!"; that thereupon one Thomas, the brother of said woman, approached defendant and told him he must not curse that woman; that some words passed, defendant drew his knife, and started towards Thomas, when Dodson, the deceased, stepped up and said, "Boys, we don't want any fuss here," and addressing defendant said, "John, there is no use of this, come with me," taking hold of him at the same time, and defendant taking hold of Dodson, and thus both of them walked off from ten to twenty feet distant from the platform. What was further said between the two as they went does not appear, but it does appear that Dodson's object was to pacify Jackson and that Jackson was cursing and abusing the crowd, around them. There is no evidence of any hostile demonstration on the part of deceased to defendant, further than that he had hold of him to quiet him. It appears that while deceased and defendant had hold of each other, Dick Green went up to them and tried to pull Dodson loose, and on discovering that defendant had a knife in his hand, he let Dodson go, and asked defendant's brother to try and get the knife from him; that the brother went near the parties, returned and said to Green he could do nothing with him, and "that you will have to knock him down;" that Dick Green aimed a blow at defendant's head with a stick and struck him on the shoulder, and while aiming to strike another blow the stick was caught by Shote, who drew and snapped a pistol at Green. The evidence shows that defendant struck deceased three licks with a knife or razor, one of which severed the jugular vein killing Dodson instantly. It tends to show that defendant made two of the three licks, and was in the act of making the third, before he...

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3 cases
  • The State v. Fannon
    • United States
    • Missouri Supreme Court
    • 12 Noviembre 1900
    ... ... given. In this no error was indulged in. Having been fully ... included in instruction number six offered by the state it ... became the duty of the court to refuse it. State v ... Edie, 147 Mo. 535; State v. Jones, 78 Mo. 278; ... State v. Anderson, 89 Mo. 312; State v ... Jackson, 96 Mo. 200; State v. Elliott, 98 Mo ... 150; State v. Thomas, 99 Mo. 235; State v ... Gamble, 119 Mo. 427. It has been frequently held by this ... court that when the instructions as a whole, declare the law, ... omissions in the way of particular instructions will not ... constitute ... ...
  • State v. Knock
    • United States
    • Missouri Supreme Court
    • 1 Febrero 1898
    ...44 S.W. 235 142 Mo. 515 The State v. Knock, Appellant Supreme Court of Missouri, Second DivisionFebruary 1, 1898 ...           Appeal ... from Jackson County Criminal Court. -- Hon. John W. Wofford, ...           ... Affirmed ...          Kagy & Bremermann for appellant ...          (1) The ... second count of the indictment is assailed because of its ... duplicity, as it contains allegations which constitute ... ...
  • The State v. Edie
    • United States
    • Missouri Supreme Court
    • 7 Febrero 1899
    ... ... right was refused. An instruction is rightfully refused when ... the same principle is contained in another given. State ... v. Jones, 78 Mo. 278; State v. Sayers, 58 Mo ... 585; State v. Anderson, 89 Mo. 312; State v ... Mathes, 90 Mo. 571; State v. Jackson, 96 Mo ... 200; State v. Thompson, 83 Mo. 257; State v ... Elliott, 98 Mo. 150; State v. Thomas, 99 Mo ... 235; State v. Gamble, 119 Mo. 427; State v ... Woods, 97 Mo. 31; State v. Johnson, 76 Mo. 122 ... (2) When the instructions as a whole, declare the law, ... omissions in the way of ... ...

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