The State v. Darling

CourtUnited States State Supreme Court of Missouri
Citation97 S.W. 592,199 Mo. 168
PartiesTHE STATE v. DARLING, Appellant
Decision Date20 November 1906

Appeal from Cooper Circuit Court. -- Hon. Wm. H. Martin, Judge.

Reversed and remanded.

W. V Draffen and C. D. Corum for appellant.

(1) Under the decisions of this State, a juror who has formed an opinion from having read the evidence taken at the coroner's inquest and at the preliminary hearing, as printed in a newspaper, is, as a matter of law, disqualified from serving as a juror. State v. Foley, 144 Mo 610; State v. Culler, 82 Mo. 623; State v Hulz, 106 Mo. 53. The decisions of other States are in harmony with the law here. Greenfield v. People, 74 N.Y. 277; Rice v. State, 9 Tenn. 432; Carroll v. State, 5 Neb. 31; Smith v. State, 5 Neb. 181; People v. McQuade, 48 Hun 620; Morton v. State, 1 Kan. 468. (2) The court erred in failing to instruct on manslaughter in the fourth degree. The testimony of defendant and his brother warranted such instruction. State v. McKenzie, 177 Mo. 712; State v. Garrison, 147 Mo. 557; State v. Weakley, 178 Mo. 423; State v. Wensell, 98 Mo. 149; State v. Todd, 194 Mo. 396; State v. Bulling, 105 Mo. 204; 2 Bishop's New Criminal Law, sec. 704. (3) It is not the law of this State that a person under the age of eighteen, convicted of murder in the second degree, shall be punished the same as an adult person. He "may be punished in the same manner and to the same extent as provided by statute for the punishment of persons over the age of eighteen." But this is not the only punishment that may be meted out to him by the jury. The court failed to give the defendant the benefit of the minimum punishment that might be assessed against him for the offense of which he was convicted, and in failing so to do, committed error. R. S. 1899, sec. 7759; State v. Armstrong, 167 Mo. 271; State v. Gilbreath, 130 Mo. 504; (4) The trial judge permitted the State to show that one passing along the road which leads by the Darling home would be in sight of a person at the Darling home for a quarter of a mile. This evidence was most prejudicial to the defendant. (5) The court committed error in permitting the State to show by Mrs. Carroll that Dorvil Burris, in speaking of Jeffress, said, "He might work to-day and he might not." This statement was not made in the presence or hearing of the defendant. There is no evidence showing that the defendant conspired with Burris to do Jeffress any harm. The evidence not only does not show a conspiracy between defendant and Burris, but it does not even tend to show that Burris was an accomplice. (6) Declarations not made during the progress of a common object, nor during the pendency of the criminal enterprise, are incompetent as evidence, and improperly admitted. State v. Fredericks, 85 Mo. 149; State v. Duncan, 64 Mo. 263; State v. May, 142 Mo. 152; Greenleaf on Evidence, sec. 3; Wilson v. People, 94 Ill. 299; Ford v. State, 112 Ind. 373; State v. Grant, 86 Ia. 216; Cox v. State, 8 Tex.App. 254; Loggins v. State, 8 Tex.App. 434. (7) The question whether in fact there was a conspiracy was one for the determination of the jury, and it ought to have been submitted to them for solution. State v. Kennedy, 177 Mo. 131; State v. Ross, 29 Mo. 50.

Herbert S. Hadley, Attorney-General, N. T. Gentry, Assistant Attorney-General, and Chas. W. Journey for the State.

(1) No error was committed in the selection of the jurors. While some of them stated that they had formed an opinion from reading what purported to be the evidence taken before the coroner and the committing magistrate, and formed an opinion from newspaper reports and rumor, yet they all further stated that they could and would try the defendant according to the law and the evidence. Under the former rulings of this court the jurors were qualified. State v. Cunningham, 100 Mo. 388; State v. Core, 70 Mo. 493; State v. Hunt, 141 Mo. 630; State v. Duffy, 124 Mo. 8; State v. Walton, 78 Mo. 270; State v. Brennan, 164 Mo. 487. Whether the purported testimony was a true copy of the testimony taken in the case does not appear from the record, and the newspaper accounts of said evidence were not offered in evidence. Where it is not made to appear that the reports read in a newspaper were either a literal or substantial report of the evidence given in the trial, such printed statements must be regarded simply as rumors and newspaper reports. State v. Robinson, 117 Mo. 659; State v. Shackleford, 148 Mo. 493; State v. Reed, 137 Mo. 131. (2) No error was committed in failing to instruct the jury on manslaughter in the fourth degree. If the State's evidence is true, the defendant was clearly guilty of murder in the first degree; if the defendant's evidence was true, then he was guilty of no offense. In this condition of the evidence there was no half-way ground, and the court properly declined to instruct the jury on manslaughter in the fourth degree. State v. Bailey, 190 Mo. 257. (3) No error was committed in allowing State's witness Burris to testify to the effect that the defendant's house was in plain view of the public road. (4) A conspiracy need not be proved by direct and positive testimony, but may be inferred from the circumstances and conduct of the parties, their joint action and their presence at the time of the organization of the conspiracy and at the time of the execution of the same. Wharton's Crim. Law, sec. 1389; Wharton on Crim. Ev., sec. 298; 2 Bishop's Crim. Proc., sec. 227; People v. Childs, 127 Cal. 363; State v. Scott, 30 Ala. 503; State v. Gooch, 105 Mo. 396; State v. Valle, 164 Mo. 551; Gibson v. State, 89 Ala. 128; Spies v. People, 122 Ill. 170; 3 Greenleaf on Evidence, sec. 93; State v. Walker, 98 Mo. 104. (5) No error was committed in permitting the State to prove by Mrs. Carroll that Dorvil Burris said, in speaking of the deceased: "He might work to-day, and he might not." Everything done and said by the various parties to a conspiracy during the time of the existence of the conspiracy, whether said in the presence of each other or not, is admissible. 4 Elliott on Evidence, secs. 2941-3; 2 Wigmore on Evidence, sec. 1079. (6) Defendant having been convicted of an offense less than the one he is really guilty of, is a matter about which he cannot complain. State v. Todd, 194 Mo. 337; sec. 2369, R. S. 1899.

OPINION

BURGESS, P. J.

The defendant, his brother, Silas Darling, and Dorvil Burris were jointly charged, in an information filed by the prosecuting attorney of Cooper county, with murder in the second degree, in killing with a dangerous and deadly weapon, to-wit, a large stone, one Samuel Jeffress at Cooper county on the 13th day of March, 1905. The cause was set for trial on the 10th day of July, 1905, when by permission of the court the State amended the information so as to charge said Darling and Burris with murder in the first degree. Thereupon Burris pleaded guilty to manslaughter under said information, and was sentenced to two years imprisonment in the penitentiary, and was paroled by the court on the condition that he would not violate the law.

The defendants Ernest and Silas Darling then requested a severance, and that the State be required to elect as to which one of them it would try first.

The State then elected to try Ernest Darling first and the trial was proceeded with, resulting in a verdict of guilty of murder in the second degree, and the fixing of defendant's punishment at twenty years imprisonment in the penitentiary.

After unsuccessful motions for a new trial and in arrest, defendant appeals.

The facts are substantially as follows: The defendant and Silas Darling are brothers, and at the time of the homicide lived with their father on a farm in Cooper county between Blackwater and the Saline county line. Dorvil Burris also lived with and worked for the father of the Darling boys. Prior to March 13, 1905, the deceased lived with his widowed mother in the village of Nelson, which is a few miles from Blackwater, but on that day went to work for one Charles Carroll as a farm hand, the farm being situated in Cooper county. On the afternoon of the day preceding, being Sunday, Emmett Yeager visited at the Darling home and told the defendant that Sam Jeffress had gone to work for Charles Carroll as a farm hand. In a short while Dorvil Burris came in, and defendant said to him, "Dorvil, Sam Jeffress is going to work down here at Charlie Carroll's and I will get the son-of-a-bitch in the morning." Dorvil replied that that was all right, and that he would like to slip along behind and see it done. Presently Silas Darling came in the room, and defendant repeated his remarks to Silas, at the same time changing a small pair of iron knucks from his pocket to Silas's pocket, and getting a large pair of iron knucks from Silas's pocket and putting same in his (defendant's) pocket. From the Darling home defendant and Emmett Yeager went to visit Miss Mollie Finley, who lived in the neighborhood. While making this call, defendant asked Miss Finley if she knew Sam Jeffress, to which she replied that she did, and that she thought he was a pretty good-looking boy. Defendant said, "Yes, he is a pretty good-looking boy, but he probably won't look as well to-morrow as he does to-day." While returning from the Finley home defendant told Emmett Yeager, "I told Sam while he was cussing me there in Blackwater that I would get my revenge, and by God, I will get it, too." That afternoon Silas Darling said to Dorvil Burris that he thought he (Silas) ought to go down there with defendant the next day, as Sam might make a knife play.

After dinner on Monday, March 13th, Mr. Carroll took the deceased to a field and started him to work with a pair of mules and a tongueless cultivator. About the same...

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