State v. Birks

• Decision Date: 20 November 1906
• Citation: 199 Mo. 263,97 S.W. 578
• Parties: STATE v. BIRKS.
• Court: Missouri Supreme Court

97 S.W. 578

199 Mo. 263

STATE v. BIRKS.

Supreme Court of Missouri, Division No. 2.

November 20, 1906.

1. HOMICIDE—INFORMATION—SUFFICIENCY.

Where an information for murder, after charging the assault by shooting at deceased with a gun, omits the words "thereby giving to him one mortal wound" or words of similar import, leaving the charge without any connection between the shooting at deceased and the infliction of the wound, the information is insufficient.

2. CRIMINAL LAW—EVIDENCE—RES GESTÆ.

In a prosecution for murder, evidence of statements by deceased 15 minutes to half an hour after the difficulty to the physician attending him was not admissible as part of the res gestæ.

3. HOMICIDE — EVIDENCE—FORMER DIFFICULTIES BETWEEN PARTIES.

In a prosecution for murder, evidence of the fact of former difficulties between deceased and defendant, but not of the details of such difficulties, was admissible.

4. CRIMINAL LAW — INSTRUCTIONS—APPLICABILITY TO EVIDENCE.

In a prosecution for murder, instructions as to threats by deceased based on facts not shown by the evidence should not have been given.

5. HOMICIDE — EVIDENCE — THREATS BY DECEASED.

In a prosecution for murder, where there is conflicting testimony as to who was the aggressor at the time of the difficulty, proof of uncommunicated threats by deceased against defendant may be considered by the jury in determining who was the aggressor.

6. SAME.

In a prosecution for murder, proof of threats by deceased against defendant which were communicated to defendant may be considered by the jury in determining the question of the reasonable grounds of apprehension of danger by the defendant, as well as in explanation of the conduct of the parties at the time of the fatal difficulty.

Appeal from Circuit Court, Lawrence County; F. C. Johnston, Judge.

Harry Birks was convicted of murder in the second degree, and appeals. Reversed and remanded.

This cause is brought here upon appeal by the defendant from a judgment of conviction in the circuit court of Lawrence county for murder of the second degree. The information upon which this prosecution is predicated is as follows:

"State of Missouri, County of Barry—ss.: In the Barry County Circuit Court, September Term, 1905. State of Missouri, Plaintiff, v. Harry Birks, Defendant. D. H. Kemp, prosecuting attorney within and for the county of Barry, in the state of Missouri, acting herein under his oath of office and upon his knowledge, information, and belief, informs the court that Harry Birks, on the 9th day of March, A. D. 1905, at and in the county of Barry and state of Missouri, then and there being, in and upon one Marion Thomas, then and there being, feloniously, willfully, deliberately, premeditatedly, on purpose, and of his malice aforethought did make an assault, and with a dangerous and deadly weapon, to wit, a double barrel shotgun, then and there loaded with gunpowder and leaden balls, which he, the said Harry Birks, in his hands then and there had and held, at and against him, the said Marion Thomas, then and there feloniously, willfully, deliberately, premeditatedly, on purpose, and of his malice aforethought did shoot off and discharge, and with the double barrel shotgun aforesaid then and there feloniously, willfully, deliberately, and premeditatedly, on purpose, and of his malice aforethought did shoot and strike him, the said Marion Thomas, in the middle of the right groin of the body of him, the said Marion Thomas, then and there with the dangerous and deadly weapon, to wit, the double barrel shotgun aforesaid, and the gunpowder and leaden balls aforesaid, in and upon the right groin of him, the said Marion Thomas, one mortal wound, of the breadth of two inches, and of the depth of six inches, of which said mortal wound the said Marion Thomas, from the 9th day of March, 1905, in the county of Barry and state aforesaid, did languish, and, languishing, did live, on which said 10th day of March, 1905, the said Marion Thomas, in the county of Barry and state of Missouri, of the mortal wound aforesaid died. And so D. H. Kemp, prosecuting attorney aforesaid, upon his oath aforesaid, does inform the court that the said Harry Birks him, the said Marion Thomas, in the manner and form aforesaid, by means aforesaid at the time and place aforesaid, feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought did kill and murder, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state. D. H. Kemp, Prosecuting Attorney.

"D. H. Kemp, prosecuting attorney, makes oath and says that the facts stated in the foregoing information are true according to his best information and belief. D. H. Kemp.

"Subscribed and sworn to before me this 15th day of August, 1905. Sig Solomon, Notary Public. [Seal.] My term expires January 14th, 1909."

It will be observed that the killing of Marion Thomas is charged to have occurred in Barry county. The record discloses that upon the defendant's application the venue of said cause, on the ground of the prejudice of the inhabitants of said county, was changed to the circuit court of Lawrence county. At the November term, 1905, of the Lawrence county circuit court the defendant was put upon his trial. The state's evidence tended to prove that the deceased and his brother, Houston Thomas, resided on a farm near Monett, and were engaged in the sawmill and threshing machine business. The deceased was a married man and about 40 years of age, and his brother was about 30 years old at the time of the homicide. On March 9, 1905, deceased and his brother drove to Monett in a two-horse buggy, reaching there between 11 and 12 o'clock. They tied their team to the public track and visited various places of business during the afternoon. About 6 o'clock p. m. they went to the Shaw saloon, where they saw defendant at the farther end of the bar. Deceased and his brother had also seen the defendant near the post office an hour or more prior to this time, but nothing was said by either one of them at either time. While they were in the Shaw saloon, defendant left the saloon, going out the back door. This saloon was located in the same block and only a short distance from the Sherman saloon, where the final difficulty occurred. After leaving the Shaw saloon, deceased and his brother went to the lumber yard, and from there to the Sherman saloon. The witnesses differ as to the exact time when these two men reached the Sherman saloon, but all agree that it was a little after 6, possibly 5, 10, or 15 minutes past 6. In this saloon the deceased was standing next to a screen, Thornton Cox was standing next to deceased, and Houston Thomas was standing next to Thornton Cox, and all three were facing the bar, taking a drink. The saloon faces the east, has double doors in front and near to said doors, and only six or seven feet away is a screen made of wood and colored glass. On the north side of the saloon is the bar, and on the east end of the bar, out beyond the screen, is the cigar stand. The deceased, his brother, and Thornton Cox were west of, and be hind, this screen, and near to, and facing the bar. A few minutes after Mr. Sherman came on duty in the saloon the deceased asked him if he had seen defendant, or if he knew where the defendant was. In a monument the defendant walked into the front of the saloon and around on the south side of this screen. He was carrying a double-barreled shotgun. Defendant had the stock of the gun under his arm, and the barrel was angling out to the front of him and towards the deceased. Defendant said: "What in the hell are you fellows talking about? I understand you are looking for me." Deceased said, "Harry, don't," and raised his hands. At the same time he walked towards the defendant. Defendant stepped back toward the front door and fired at deceased; the load taking effect in the right groin. Deceased fell to the floor, and defendant pointed his gun toward the brother of the deceased; but Sherman jumped over the cigar case and took the gun away from defendant. At the same time Thornton Cox took hold of deceased's brother and prevented any further trouble.

The state's evidence further showed that a little after 6 o'clock p. m. defendant walked into the Shaw saloon, or Meagher's saloon, carrying a double-barreled shotgun, and asked Mr. Meagher to give him some shells. Mr. Meagher asked where he was going, and defendant said that he was going to King's Pond the next morning duck hunting. Mr. Meagher then gave defendant four loaded shells, and defendant broke down the gun and inserted two of the shells in the breech. Mr. Meagher objected to defendant loading the gun in there; but defendant did not remove the shells. Defendant left the Meagher saloon, and in less than 10 minutes he returned, saying that he had killed a man, and gave Mr. Meagher back two of the shells. Defendant was arrested that evening by Officer Jackson, who took defendant to jail; and defendant remarked to the officer that "that was a hell of a way to go duck hunting." At 2 o'clock that night Officer Jackson received a telephone message that Marion Thomas had died, and told the defendant of that fact the next morning. Defendant said, "I guess I will have to die a little, too." The next day, while riding on the train with Officer Jackson, defendant stated to John Hornbeck that he wished he had killed Mr. Sherman first, and then shot the other two brothers. A few minutes after the shooting Dr. Russell was summoned to the saloon and examined the wounds on deceased, and Dr. Miller was also summoned, and the two decided to move deceased to the Indiana Hotel. The physicians testified that they found deceased suffering from a gunshot wound, which entered the right groin, extending back through the pubic bone and into the rectum. The wound ranged down, to the right and backward, and was very large, having been made by a...