State v. Anderson

• Decision Date: 30 April 1885
• Citation: 86 Mo. 309
• Parties: THE STATE v. ANDERSON et al., Appellants.
• Court: Missouri Supreme Court

86 Mo. 309

THE STATE

v.ANDERSON et al., Appellants.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Carroll Circuit Court.--HON. JAMES M. DAVIS, Judge.

REVERSED.

W. M. Eads and L. H. Waters for appellants.

(1) The court erred in giving several of the state's instructions. ( a) The first and second instructions do not properly define the different degrees of murder, there was no evidence tending to show that Baugh was present, assisting Anderson in killing Rea. ( b) The third instruction authorized a conviction, although the jury entertained a doubt as to the degree of the offence committed. ( c) The fourth instruction told the jury that if they believed beyond a reasonable doubt that Anderson was guilty, etc. Their belief should have been confined to the evidence. ( d) The eighth instruction told the jury that they must consider whatever defendants have said since the shooting, in relation thereto, “all together.” This instruction assumes that defendants were so connected with the killing that each was bound by what the other said. (2) The court erred in refusing defendants' instructions marked a, b, c and d, in the bill of exceptions. ( a) The court should have instructed the jury that if they entertained a doubt as to whether Anderson, in killing Rea, acted maliciously, or in self-defence, he could not be convicted. ( b) The court erred in refusing to instruct the jury that if Rea brought on a difficulty, and in following it up was killed, that such killing was not murder. ( c) The defendants had a right to defend not only their persons, but their cabin. (3) The court will not consider any instructions or motions unless they are set out in the bill of exceptions. Collins et al. v. Barding, 65 Mo. 496; State to use, etc., v. Eldridge, 65 Mo. 584; State v. Shehane, 25 Mo. 565. The case to be tried is that made by the records. The court will neither as sume that there was evidence authorizing an instruction given, nor that such instructions were given as the evidence would warrant. (4) It seems to us that the court, on reading the evidence, must conclude that the verdict is wrong. There is a grave doubt if defendants are guilty of murder in the second degree, and the sentence is cruel and unusual. (5) The conviction of Baugh was not authorized under the evidence.

Shewalter & Sebree also for appellants.

(1) The court, of its own motion, should have instructed as to manslaughter. State v. Banks, 73 Mo. 597; State v. Robinson, 73 Mo. 308; State v. Edwards, 71 Mo. 324; State v. Hill, 69 Mo. 452; State v. Branstetter, 65 Mo. 152. (2) The instruction numbered two given for the state is fatally defective in failing to use the word “feloniously.” R. S., secs. 1232-3. (3) The fourth instruction given on behalf of the state is likewise erroneous. State v. Ross, 29 Mo. 40; 1 Bishop C. P., sec. 546. (4) The trial court committed error in failing to define the word “feloniously.”

B. G. Boone, Attorney General, and J. L. Peak for the state.

(1) The indictment is properly drawn. Both defendants are charged as principals in making the assault--Anderson as the immediate perpetrator of the crime, and Baugh as present aiding and abetting. It is not material which one is charged with having inflicted the fatal wound. Both are principals, and the law imputes the injury given by one as the act of the other. State v. Dalton, 27 Mo. 13; State v. Ross, 29 Mo. 32; State v. Davis, 29 Mo. 391. The instructions given on behalf of the state present the case fully and fairly. The first instruction is a plain and clear statement of the law as to murder in the first degree. The evidence justified the instruction. Green v. State, 13 Mo. 382; State v. Jennings, 18 Mo. 435; State v. Ross, 24 Mo. 483; State v. Hollenscheit, 61 Mo. 302; State v. Foster, 61 Mo. 549. The second instruction properly defines murder in the second degree, and there was evidence to support it. State v. Underwood, 57 Mo. 40; State v. Lane, 64 Mo. 319; State v. Peak, 85 Mo. 190. It was unnecessary in defining murder in the second degree, that the meaning of “feloniously” should be explained. This word is not an element of crime, but is only used in classifying offences. It is only where words constitute distinct elements of crime, and are technical, that they need be defined. State v. Snell, 78 Mo. 240. The evidence in this case might properly have been applied to either murder in the first or second degree. State v. Lane, 61 Mo. 319, and cases cited. The degree was a question for the jury to determine from all the facts in evidence. State v. Foster, 61 Mo. 549. The fourth instruction was proper. 2 Bish Cr. Pro. (3 Ed.) sec. 7, and authorities cited; State v. Hollenscheit, 61 Mo. 308; State v. Miller,70 Mo. 604. The technical words constituting the elements of the crime charged are properly defined in the fifth instruction. State v. Weiners, 66 Mo. 13; State v. Banks, 73 Mo. 592; State v. Kotovsky, 74 Mo. 247. The sixth instruction, defining a reasonable doubt, has been repeatedly approved by this court from 1857, State v. Nueslein, 25 Mo. 111, to 1883, State v. Jones, 78 Mo. 282. The seventh instruction in regard to self-defence has, under a similar state of facts, uniformly been approved by this court. State v. Starr, 38 Mo. 270; State v. Linney, 52 Mo. 40; State v. Underwood, 57 Mo. 50. The eighth instruction in regard to admissions has been sanctioned by this court. State v. Carlisle, 57 Mo. 102; State v. Hill, 65 Mo. 84. The ninth instruction in regard to the admissions of one defendant not affecting or binding the other was correct. State v. Daubert, 42 Mo. 239; State v. Duncan, 64 Mo. 262; State v. Reed & Fredericks, 85 Mo. 145. The tenth instruction as to the credibility of witnesses, and the eleventh, as to defendant's testimony, demeanor on the stand, etc., have been sanctioned so often by this court as not to require the citation of authorities to prove their correctness. (2) The trial court was not authorized to give an instruction for manslaughter in any degree. The evidence showed that the offence was either murder in the first or second degree, or self-defence. State v. Kilgore, 70 Mo. 547; State v. Ellis, 74 Mo. 207; State v. Johnson, 76 Mo. 121; State v. Snell, 78 Mo. 240; State v. Jones, 79 Mo. 441. Courts, in the trial of defendants charged with murder, should not instruct as to manslaughter, unless there is evidence to support such instructions. State v. Edwards, 71 Mo. 312. The uncontradicted testimony was that the homicide was intentional and committed with a deadly weapon. Under this state of facts it would have been error for the court to have instructed other than it did. State v. Alexander, 66 Mo. 148. (3) Several instructions were asked by defendants. Those marked A, B, C, and D, respectively, having been refused, while a number of others, not presented in the return to the certiorari, but appearing in the first transcript, were given. The ones refused are not specifically mentioned in the motion for a new trial. This court will not review matters of exception not brought to its attention by a motion for a new trial; nor will it review mere matters of exception to which no objection was made in the progress of the trial, although attention is called to them in the motion for a new trial. State v. Ray, 53 Mo. 345; State v. Pints, 64 Mo. 318; State v. Williams, 77 Mo. 310; State v. McDonald, 85 Mo. 539. When it clearly appears that other instructions than those preserved were given, the presumption is, that the court properly instructed the jury. If the party appealing does not bring up the full record, the Supreme Court will infer that the action of the lower court was proper as to matters omitted. State v. Tucker, 84 Mo. 23; Birney v. Sharp, 78 Mo. 73; Greenbaum v. Millsaps, 77 Mo. 474; Goode v. Crow, 51 Mo. 212; State v. Sullivan, 51 Mo. 522. (4) There is no merit in the objection that defendants were not afforded an opportunity to challenge the array of the grand jury which found the indictment. Such exceptions, when tenable, come too late when made for the first time on a motion for a new trial. State v. Marshall, 36 Mo. 400; State v. Connell, 49 Mo. 282; State v. Arnold, 55 Mo. 89, and cases cited. Defendants cannot object to the composition or organization of the grand jury. R. S., 1879, sec. 1772; State v. Pitt, 58 Mo. 556; State v. Breen, 59 Mo. 413; State v. Jones, 61 Mo. 232; State v. Hart, 66 Mo. 208; State v. Pate, 67 Mo. 488. The court will not interfere with a verdict on the ground that it is against the weight of evidence.

HENRY, C. J.

The defendants were indicted in the Carroll circuit court for the murder of John Rea, and, on a trial, were convicted of murder in the second degree at the April term, 1885, of said court, and from the judgment have appealed to this court.

The defendant Baugh and Rea had occupied a cabin together, but had a difficulty, which resulted in their separation, Rea leaving Baugh in possession of the cabin and of some furniture belonging to Rea. Baugh had made threats that if Rea ever came back to the cabin he “would stop him at the door.” To another witness, that if Rea ever came to his house, “he would never get away alive.” On the morning of the eighth of April, 1884, Baugh went over to see Anderson, who is his cousin, and who was sick, and asked him to go home with him. There is evidence tending to prove that Baugh expected Rea to come to his cabin that afternoon for his goods. Anderson accompanied Baugh home, and about six o'clock that afternoon, Rea went to the cabin and was killed near and in front of the cabin door by the defendant Anderson.

The testimony of Anderson and Baugh, if true, made a clear case of self-defence. It was to the effect that Rea came and knocked at the door of the cabin, and was asked by Baugh who it was, and, answering, was told by Baugh that there had been strife between them and he did not wish him to come into the cabin, but Anderson said let him come in, and...