State v. Arnewine

• Court: Missouri Supreme Court
• Writing for the Court: Burgess, J.
• Citation: State v. Arnewine, 136 Mo. 130, 37 S.W. 799 (Mo. 1896)
• Decision Date: 20 November 1896
• Parties: The State v. Arnewine, Plaintiff in Error

37 S.W. 799

136 Mo. 130

The State v. Arnewine, Plaintiff in Error

Supreme Court of Missouri, Second Division

November 20, 1896

Error to Henry Circuit Court. -- Hon. James H. Lay, Judge.

Affirmed.

B. G Boone for plaintiff in error.

(1) The court committed error, first, in its rulings on the evidence second, in not striking out the evidence of the witness Emma Martin. (2) The court also committed error in its rulings on the instructions. (3) The court should have instructed on the question of self-defense.

R. F Walker, attorney general, and Morton Jourdan, assistant attorney general, for the state.

(1) The defendant will not be heard to complain of the instructions given in this case, nor to their sufficiency, for the reason that he saved no exceptions at the time they were given, and the first complaint made was in the motion for new trial. State v. Bosler, 119 Mo. 417; State v. Foster, 115 Mo. 448. (2) Nor will the defendant be heard to complain of the action of the court in failing to give any instructions or to fully declare the law of the case for the reason that he saved no exceptions to the failure of the court to do so. State v. Paxton, 126 Mo. 500; State v. Cantlin, 118 Mo. 100. (3) The defendant complains that the verdict is against the evidence, and asserts that the evidence is not sufficient to support, warrant, or authorize the verdict. The testimony in this case shows the guilt of defendant beyond question. It is clear, positive, and convincing. The sufficiency of testimony will not be questioned by this court except where there is a total failure of proof. State v. Punshon, 124 Mo. 448; State v. Fischer, 124 Mo. 460; State v. Young, 119 Mo. 495; State v. Banks, 118 Mo. 117.

OPINION

Burgess, J.

At the August term, 1893, of the circuit court of Lawrence county, Missouri, the defendant was indicted for murder in the first degree for shooting to death with a pistol, one George Keeton at said county on the twenty-eighth day of June, 1893. On defendant's application a change of venue was awarded to the circuit court of Henry county where, upon a trial had to a jury, he was at the May term, 1894, of said Henry circuit court, convicted of murder of the second degree.

After conviction the defendant filed his motion for new trial, which was overruled. He then filed his motion in arrest, which was sustained by the court because of the insufficiency of the indictment. The state thereupon saved its exceptions and appealed to this court, where the judgment of the circuit court holding the indictment insufficient was reversed and the case remanded. See State v. Arnewine, 126 Mo. 567, 29 S.W. 602. At the next regular May term, 1895, the motion in arrest was taken up and overruled and the defendant sentenced to ten years' imprisonment in the penitentiary, which term had been fixed by the court because of failure of the jury to agree upon the punishment. In due time defendant filed his bill of exceptions, and sued out his writ of error from this court, and brings the case here for review.

The deceased, George Keeton, was the son-in-law of the defendant Wm. Arnewine, and together with his wife, formerly Alice Arnewine, his infant child and Vina Arnewine, lived in a cabin near the home of the defendant in Lawrence county. On the evening of the twenty-eighth of June, 1893, Jesse Arnewine, the fourteen year old son of the defendant, packed up his clothes and moved over to the deceased's house to live. Between 8 and 9 o'clock that evening, and while the moon was shining, the defendant upon learning of the absence of his son, with a rawhide in his hand and a pistol in his right hip pocket, went over to Keeton's, and at the fence across a large yard from the cabin, called to his son Jesse, who was in the house with his sister Vina and Keeton's infant child. Keeton and his wife were sitting upon the front doorstep. When the father called, deceased in turn called to Jesse and told him that his father wanted him. Jesse came out of the house and started to cross the yard to the fence where his father was, then turned and ran back into the door where Keeton was, and through the room into the back yard. Arnewine started to crawl through the wire fence for the purpose of coming to the house, and the deceased hallooed to him not to come in. Instead of obeying the injunction of the deceased, defendant climbed through the fence and continued to the house. When he got to the door deceased told him not to go into the house, and stood...