State v. Anderson

• Decision Date: 07 June 1886
• Parties: The State v. Anderson et al., Appellants
• Court: Missouri Supreme Court

1 S.W. 135

89 Mo. 312

The State v. Anderson et al., Appellants

Supreme Court of Missouri

June 7, 1886

Appeal from Carroll Circuit Court. -- Hon. J. M. Davis, Judge.

Affirmed.

J. W Sebree and L. H. Waters for appellants.

(1) The defendants having been acquitted of murder in the first degree in this case, on a former trial, the conviction for murder in the first degree at the last trial was wrong unless there is some provision in the constitution changing the law on that subject. State v. Ross, 29 Mo. 32. The present constitution provides: "Nor shall any person, after being once acquitted by a jury, be again, for the same offence, put in jeopardy of life or liberty; but * * * if judgment on a verdict of guilty be reversed for error in law, nothing herein contained shall prevent a new trial * * * according to correct principles of law." Const., art. 2 sec. 23. The constitution does not pretend to declare what those "correct principles of law" may be, but means that the error committed at the former trial shall be corrected, or that the trial shall be according to the law of the land. The laws of this state, in force before the adoption of the present constitution, and still in force expressly provides that "when a defendant shall be acquitted upon any indictment, he shall not thereafter be tried or convicted of a different degree of the same offence." State v. Bruffey, 75 Mo. 392; R. S. 1879, sec. 1656. And he may plead such acquittal in bar to any subsequent accusation. R. S. 1879, sec. 1658. The laws of this state, in force since long before the adoption of our constitution, provides that where judgment shall be arrested the defendant may be again tried for the same offence, and such has been the uniform practice in this state. R. S. 1879, sec. 1657. The constitution made no change in the rule where judgment shall be arrested, nor has it provided for the trial of a defendant after he has been acquitted. This case was reversed "for error in law." Under the provision of the constitution defendants could again be tried according to correct principles of law. What "those principles of law" are, the constitution does not pretend to say. (2) When circumstances of deliberation and malice are not proved, the law will only presume a homicide to be murder in the second degree. State v. Eaton, 75 Mo. 586. The evidence in this case utterly failed to show deliberation and malice. Rea was killed at or in the door of Baugh's cabin after he had literally cut Baugh all to pieces. We must look to the facts and circumstances of the killing itself, to determine the grade of the offence, and if that is done in this case, no one can say the defendants are guilty of murder in the first degree. (3) The court should have given an instruction as to each grade of homicide to which any of the evidence might apply, and of which defendants might be convicted. State v. Branstetter, 65 Mo. 155; State v. Edwards, 70 Mo. 480; State v. Robinson, 73 Mo. 306; State v. Wieners, 66 Mo. 20. If Rea was killed in "heat of passion" upon any sudden or sufficient provocation; if unnecessarily killed while resisting an attempt to commit a felony, or to do some other unlawful act after such attempt had failed, then the killing was manslaughter, and an instruction defining that offence should have been given, 3 Cooley's Bl. Com. 191; State v. Holmes, 54 Mo. 165; Whar. on Hom. 398; State v. Starr, 38 Mo. 277, and cases cited; R. S., sec. 1243. Rea and Baugh were unfriendly. Rea went to the cabin where defendants were. Immediately after the shooting Baugh was found dangerously cut in his side, and severely cut on the shoulder. No attempt was made to show that these wounds were self-inflicted. The surgeon who dressed them testified that it was physically impossible that Baugh should have thus wounded himself. There was a conflict beyond any doubt, and in that conflict Rea was killed by Anderson, and Anderson's hand was cut by Rea. The injuries were inflicted on Baugh before Rea was shot. Mrs. Singleton swears that the fatal shot was the second shot fired. 1 East P. C., 232-235; Whar. on Hom., sec. 5; 2 Bishop's Crim. Law, secs. 676, 697. If the killing was wilful, but without premeditation or deliberation, then it was manslaughter, and on that question the jury was not allowed to pass. State v. Edwards, 70 Mo. 480; State v. Burgess, 78 Mo. 234. (4) The court erred in refusing to allow defendants to contradict Snowy Singleton. (5) The court erred in giving the seventh, eighth, ninth and tenth instructions asked by the state, and should not have modified defendant's fifth instruction. (6) The tenth instruction asked by defendant should have been given; there was no conspiracy charged or proved. (7) The conviction of Baugh of any grade of homicide was not authorized by the evidence.

B. G. Boone, Attorney General, 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. Both are principals, and the law imputes the injury given by one as the act of the other. R. S., sec. 1649; State v. Dalton, 27 Mo. 13; State v. Ross, 29 Mo. 32; State v. Davis, 29 Mo. 391; Stipp v State, 11 Ind. 62; People v. Woody, 45 Cal. 289; State v. Anthony, 1 McCord, 285; Whar. on Hom. [2 Ed.] secs. 333-334; 1 Hale's P. C. [Am. Ed.] sec. 438. Besides, this indictment has heretofore been held sufficient by this court. State v. Anderson, 86 Mo. 309. (2) Although defendant was convicted of murder in the second degree at the first trial, this constitutes no bar to his trial and conviction of murder in the first degree after reversal of the first judgment by this court. Const. of Mo., sec. 23, art. 2; State v. Simms, 71 Mo. 538. (3) The action of the trial court was proper in excluding the testimony of one Moore as to remarks made by a Mrs. Singleton. The incompetency of the evidence is apparent without the citation of authorities. Defendants saved no other exceptions to the admission or rejection of evidence, and they cannot now be heard to complain. State v. Ray, 53 Mo. 345; State v. Pints, 64 Mo. 318; State v. Williams, 77 Mo. 310. (4) The first instruction given by the court is the formal and usual declaration of law as to murder in the first degree. 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; State v. Thomas, 78 Mo. 327. The second instruction properly defines the law as to murder in the second degree. State v. Underwood, 57 Mo. 40; S. C., 64 Mo. 319; State v. Peak, 85 Mo. 190. The third instruction told the jury if they believed defendants guilty of either degree of murder, but entertained a doubt as to the degree, they should give defendants the benefit of such doubt, and find them guilty of the lesser degree. The evidence in this case might properly have been applied to murder in either degree. State v. Lane, 64 Mo. 319, and cases cited. The degree was a question for the jury to determine from all the evidence. State v. Foster, 61 Mo. 549. The fourth instruction told the jury that if they believed, from all the evidence, that Anderson was guilty of either degree of murder, as defined, and entertained a reasonable doubt as to Baugh's guilt, that they might convict Anderson and acquit Baugh. This was correct. 2 Bish. Crim. Proc. [3 Ed.] sec. 7, and authorities cited; State v. Hollenscheit, 61 Mo. 308; State v. Miller, 70 Mo. 604; State v. Anderson, 86 Mo. 309. The fifth instruction properly defines the technical words constituting the elements of the crime charged. State v. Weiners, 66 Mo. 13; State v. Banks, 73 Mo. 592; State v. Kotovsky, 74 Mo. 247; State v. Snell, 78 Mo. 240. The sixth instruction has been repeatedly approved by this court from 1857. State v. Nueslein, 25 Mo. 111; State v. Anderson, 86 Mo. 309. The seventh instruction in regard to selfdefence 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; State v. Eaton, 75 Mo. 586; State v. Thomas, 78 Mo. 339, 340; State v. Jones, 78 Mo. 285. The eighth instruction in regard to statements made by defendants since the fatal shooting is correct. State v. Carlisle, 57 Mo. 102; State v. Hill, 65 Mo. 84; State v. Vansant, 80 Mo. 71. The ninth instruction in regard to the statements or admissions of one defendant since the fatal shooting, not binding or affecting the other, is correct. State v. Daubert, 42 Mo. 239; State v. Duncan, 64 Mo. 262; State v. Reed, 86 Mo. 194. The tenth instruction as to the credibility of witnesses, their demeanor on the stand, etc., has repeatedly received the approval of this court. State v. Thomas, 78 Mo. 341; State v. Vansant, 80 Mo. 71. These were all the instructions given by the court at the instance of the state. (4) The court then gave nine instructions at the instance of the defendant after modifying the fifth. The modification consisted in striking out the words "prior to or," in the last line before the word "since." The instruction, if given as asked, would have excluded all evidence as to what Baugh said or did prior or since the killing of Rea. The tenth instruction asked by defendant was properly refused. The defendants were jointly indicted and tried for killing Rea, and under the circumstances the instruction was misleading and improper. (5) The evidence clearly showed that the defendants were either guilty of murder in the first or second degree, or that the killing was justifiable. Under this state of facts the trial court was not authorized to give an instruction for manslaughter in any degree. State v. Kilgore, 70 Mo. 547; State v. Ellis, ...