State v. Berkley

• Decision Date: 28 March 1892
• Citation: 19 S.W. 192,109 Mo. 665
• Parties: The State v. Berkley, Appellant
• Court: Missouri Supreme Court

19 S.W. 192

109 Mo. 665

The State v. Berkley, Appellant

Supreme Court of Missouri, Second Division

March 28, 1892

Appeal from Boone Circuit Court. -- Hon. John A. Hockaday, Judge.

Affirmed.

S Turner and S. C. Major for appellant.

(1) The court committed error in not sustaining the first motion to quash the indictment; it was error to permit the names of the witnesses to be indorsed thereon after it was returned into court. State v. Roy, 83 Mo. 268; State v O'Day, 89 Mo. 559. So the second motion should have been sustained; it was not competent to permit the successor in office of the prosecuting attorney who wrote the indictment to indorse names of witnesses thereon. (2) The court erred in giving instruction, numbered 3, for the state. It was fatally defective in not submitting to the jury the question whether or not the club used was a deadly or dangerous weapon. State v. Hoffman, 78 Mo. 256; State v. McDaniel, 94 Mo. 301; State v Nueslein, 25 Mo. 111; State v. Harper, 69 Mo. 425. (3) The court erred in giving instruction, numbered 4, for the state. In using the term, heat of passion, it was the duty of the court to explain its technical meaning. State v. Andrews, 76 Mo. 101. So the use of the term self-defense furnishes no guide to the jury, but leaves them to determine the law as well as the facts. State v. Forsythe, 89 Mo. 667. (4) The court committed error in giving instructions, numbered 7 and 14, upon the part of the state. In each of these instructions the jury are told that if they believe that defendant was in a violent passion "aroused by opprobrious epithets or abusive words." * * * Nowhere in the evidence can be found any abusive words or opprobrious epithets used by "Carlos" towards defendant. The giving of each of these instructions was error; there was no evidence in the case upon which to predicate them. State v. Thompson, 83 Mo. 257; State v. Gerber, 80 Mo. 94; State v. Degonia, 69 Mo. 485.

John M. Wood, Attorney General, for the State.

(1) The court did not err in overruling the motion to quash the indictment. (2) The court gave all of the instructions prayed for by defendant, and those given on the part of the state are so fair and reasonable, and have so often been sanctioned by this court, that we do not think it will be seriously contended by appellant that they are erroneous, and do not, therefore, deem it necessary to cite cases in support of them.

OPINION

Thomas, J.

The defendant was indicted by the grand jury of Boone county in June, 1883, for murder of the first degree. The jury before whom the case was first tried failed to agree; the second trial resulted in a conviction of murder in the second degree, and on appeal to this court the judgment was reversed and the case remanded for new trial. 92 Mo. 41. The case was again tried in February, 1891, which resulted in conviction of manslaughter of the third degree, and defendant was sentenced to imprisonment in the penitentiary for a term of three years and the case is before this court on appeal the second time.

I. When the jury had been impaneled at the last trial, and before the introduction of any evidence, the defendant filed his motion to quash the indictment on the ground that the names of the witnesses, upon whose testimony the indictment was found, were not indorsed on it. The prosecuting attorney thereupon, by leave of court first obtained, indorsed the names of the witnesses on the indictment, and the motion to quash was overruled. To this action of the court defendant duly saved his exceptions, and he now assigns it as error. We regard it as settled that the court has authority to pursue this course, even when the names of none of the witnesses are indorsed on the indictment. State v. Patterson, 73 Mo. 695; State v. Roy, 83 Mo. 268; State v. O'Day, 89 Mo. 559.

There is no merit in defendant's contention that the successor of the prosecuting attorney, who draws and signs the indictment, cannot, by leave of court, indorse the names of the witnesses on it. The office of prosecuting attorney, with its authority and power, continues through all changes of the personnel of the officers.

II. Martin Carlos was a blacksmith residing in Hallsville, Boone county, and defendant was a farmer living in the same neighborhood. In May, 1883, Carlos had repaired a cultivator for defendant, warranting his work. On the twenty-fourth day of May in that year one of the shovels of the cultivator broke. Defendant took the broken shovel, got on his horse in his shirt sleeves, and went to Hallsville to have it repaired, reaching there about three o'clock P. M. He found Carlos and one W. D. Hulen sitting on a box on the front platform of a store in Hallsville. He said: "Carlos, here is the plow you fixed for me; it don't give satisfaction. I would like for you to fix it again." Carlos answered that he had sold out his blacksmith shop and did not have any place to work, and nothing to fix it with. Defendant told him he would have to fix it and Carlos said something about some work which he had done for him that had not been paid for. Defendant said: "If you do not fix it I will thrash you." Carlos said: "Well, get down." Defendant got off his horse, and just as he was hitching it, Carlos rose up and pulled his knife out of his pocket. Defendant went across the road, got a stick about three feet long and two and a half or three inches in diameter and proceeded to the platform in front of the store. Carlos opened his knife and had advanced to a foot or a foot and a half of the edge of the platform by the time defendant reached the top of the platform. Carlos threw up his hands, and defendant struck him with the stick on the side of the head, and Carlos fell off the platform and died the same evening.

One witness testified that defendant spit on his hands, and rubbed them together before he picked up the stick, and that he held the stick in both hands as he advanced to the platform.

Defendant testified as follows: "I went to Hulen's store where I knew my wife had gone some time before. She had my pocket-book, and I wanted to get the money to pay for mending my plow. When I got near the front of the store I saw Martin Carlos on the platform in front of the store. I showed him the broken plow, and asked him if he would not mend it; that he had fixed it and warranted it to stand, and I had paid him for it. He said he had sold his shop and that he would not mend it. Something else was said which I do not remember. I told him if he would not mend it he ought to be thrashed, or I would thrash him. Carlos said, 'Get down then.' I was going into the store to see my wife, whom I saw in there. As I got down off my horse my back was turned toward Carlos, and as I got to the ground, and was hitching my horse to the awning post, I glanced over my shoulder and saw Carlos had risen up off a box on which he was sitting, and had a knife in his hand. I did not certainly know, at the time, what sort of a weapon it was. When I saw this, I went out, may be ten or fifteen feet, and picked up this stick here in court; it was the first thing I saw. I then returned towards the east end of the platform to go into the store. When I got close to the bottom step Carlos had advanced from the south side to the east end of the platform, intercepting my way into the store door. He had the weapon drawn and was threatening me with it; I drew up the stick in my hands and struck him on the head. He fell forwards toward me; he was moving towards me when I struck him. Before I got off my horse I had thrown the plow on the platform, or handed it to Hulen, I don't know which. I made no attempt to get the stick until I saw the knife in Carlos' hands."

The court, by its instructions, authorized the jury to find defendant guilty of murder of the first or second degree, or of manslaughter of the third or fourth degree, or acquit him on the ground of self-defense. As the defendant was found guilty of manslaughter of the third degree, it is not necessary for us to examine the objections urged to the instructions defining murder of the second degree. The court, among others, gave the following instruction: "If the jury believe from the evidence, beyond a reasonable doubt, that defendant killed deceased with a large club, about three and one-half feet in length, and three inches in diameter, and that the same was a dangerous weapon, in a heat of passion and without a design to kill him, they will find him guilty of manslaughter in the third degree, unless they further find from the evidence that such killing was done in self-defense, in which event they will find him not guilty."

Two specific objections are urged to this instruction. The first one is that it does not define "heat of passion," and the jury was left to grope in the dark as to the meaning of these words. By the seventh instruction, given on behalf of the state, the court told the jury that "although the defendant struck and killed Carlos while the defendant was in a violent passion, suddenly aroused by opprobrious epithets or abusive words spoken to him by Carlos or by drawing his knife, * * * yet if such striking and killing was done wilfully, premeditatedly and of his malice aforethought, as heretofore explained, the defendant was guilty of murder in the second degree," and by the fourteenth instruction the jury was told that if they believed "from the evidence that defendant struck and killed Carlos while the defendant was in a violent passion, suddenly aroused by reason of Carlos having used offensive language toward him, or by refusing to mend his plow or by drawing his knife, you cannot find him guilty of murder in any degree, for in that case the law presumes that such striking and killing was not done of defendant...