State v. Blunt

• Decision Date: 31 May 1892
• Parties: The State v. Blunt, Appellant
• Court: Missouri Supreme Court

19 S.W. 650

110 Mo. 322

The State v. Blunt, Appellant

Supreme Court of Missouri, Second Division

May 31, 1892

Appeal from McDonald Circuit Court. -- Hon. Joseph Cravens, Judge.

Affirmed.

J. W Brunk, A. J. Harbison and O. L. Cravens for appellant.

(1) The judgment ought to be reversed because of the mutilation of the record. Medlin v. Platte Co., 8 Mo. 325; Briggs v. Glenn, 7 Mo. 572; Dennison v Co., 33 Mo. 168. (2) The instructions certainly do not declare the law: First. It is error for the court to refer the jury to the indictment to determine what they must find in order to convict. See the instructions of the court numbered 3, 6, 7 and 8. State v. McCaskey, 104 Mo 644. Second. The last paragraph of instruction, numbered 8, on self-defense, given by the court, is as follows: "If you believe from the evidence that defendant wilfully provoked or voluntarily entered into a difficulty with a pistol ready for use, and that in the course of such difficulty, so provoked or entered into by him, he shot and killed Majors, there is no self-defense in this case, and in such case it is immaterial what the peril of the defendant was at the time of the shot." Third. It is contradictory and repugnant to the other instructions. Chrisman v. State, 54 Ark. 283. Fourth. It is vague, uncertain and indefinite; for having a pistol "ready for use" may mean nothing more than having it in an inner pocket of the clothes, with no intention to use it. Fifth. The instruction does not require the existence of the felonious intent upon the part of the defendant in the "provoking of the difficulty" and killing of deceased. The difficulty in this case was the result of a sudden quarrel, and deceased first assaulted defendant. State v. Partlow, 90 Mo. 608; State v. Berkley, 92 Mo. 41; Chrisman v. State, 54 Ark. 283; 2 Thompson on Trials, p. 1888; State v. Herrell, 97 Mo. 105; State v. Davidson, 95 Mo. 155. (3) The instructions offered by defendant fairly and fully presented the law and are not open to any of the objections urged against the instructions of the court. State v. Thomas, 78 Mo. 327. In this case instructions for manslaughter ought to have been given. State v. Davidson, 95 Mo. 155; State v. Talmage, 17 S.W. 990. (4) One of the hired counsel for the prosecution made use of the following remarks in the closing address to the jury: "Gentlemen, you know that jurors have not, in this great country, always done their duty, and times have arisen, for instance, at New Orleans, when people were impelled to take matters in their own hands because juries failed to do their duty." Defendant objected to the remark, but the counsel received no rebuke from the court. State v. Jackson, 95 Mo. 623.

John M. Wood, Attorney General, and L. F. Parker for the State.

(1) The motion to strike out part of the transcript must be disregarded by this court, as it has no jurisdiction to amend or correct the records of a circuit court, and the affidavits herein filed show that the record was lawfully and properly made. R. S. 1889, secs. 3239, 3230. (2) The evidence in this case, not being preserved in or referred to in the bill of exceptions, cannot be considered by this court. State v. Sivils, 105 Mo. 530, and cases cited. (3) The instructions, motion for new trial and motion in arrest, having neither of them been set out in the bill of exceptions, and said bill of exceptions containing no direction to the clerk to copy the same, and the same not having been copied therein, this court cannot take notice of these, or any of them. State v. Dunn, 73 Mo. 586; State v. McCrary, 74 Mo. 303; State v. Robinson, 79 Mo. 66; R. S. 1889, sec. 2304; State v. Griffin, 98 Mo. 672. (4) No pretense of an exception is preserved on either of the following points made by appellant: First. There was no exception saved to the action of the court in impaneling the jury. Second. Nor to the action of the court in permitting attorneys to assist the prosecuting attorney. Third. Nor is there any evidence of any kind preserved, or pretended to be preserved, as to remarks of counsel for the state in closing the argument. Fourth. Nor can this court learn from the transcript, under the most loose and liberal construction which can be claimed for it, what the order of argument was. Fifth. Nor was there any evidence before the court, nor does the bill of exceptions include, or pretend to include or refer to, any evidence whatever tending to show any separation of the jury. The only thing appearing in the papers with reference to this matter is the affidavit of defendant's attorney, filed after the motion for a new trial and in arrest had been overruled and the appeal granted, and the ex parte affidavit of one Ernest Barr filed in this court. Under these circumstances this court will not consider that question. State v. Musick, 101 Mo. 260; State v. Brooks, 92 Mo. 542. (5) The instructions, should the court feel justified in examining them, will be found correct, and to follow the latest decisions of this court in every particular. First. They are not obnoxious to the objection that they refer the jury to the indictment to determine any ingredient in the offense, as they and each of them include within themselves every ingredient necessary to constitute the offense described, and the reference to the indictment is mere surplusage, and could in no way prejudice the defendant. Second. There was absolutely no self-defense in this case, and no evidence on which to base an instruction on either absolute or qualified self-defense, and the Partlow case (90 Mo. 608), and cases following that case have no application. State v. Hardy, 95 Mo. 455; State v. Gilmore, 95 Mo. 554. The defendant was fairly tried, was convicted of a cold-blooded murder, and the evidence leaves no doubt that the verdict is a just one.

OPINION

Macfarlane, J.

The defendant was indicted for the murder of Jack Majors, a brakeman on the 'Frisco railroad, and has appealed to this court. The second count, upon which the defendant was found guilty of murder in the first degree, was the following: "And the grand jurors aforesaid, upon their oaths aforesaid, do further present and charge, that Newt. Blunt, alias Bud Blunt, on the twenty-sixth day of December, 1890, at the county of Newton, and state of Missouri, in and upon one Jack Majors, then and there being, feloniously, wilfully, deliberately, premeditatedly, on purpose, and of his malice aforethought, did make an assault; and a certain revolving pistol, which was then and there a deadly weapon, loaded and charged with gunpowder and leaden balls, and which said pistol so loaded as aforesaid, he, the said Newt. Blunt, alias Bud Blunt, in his right hand then and there had and held, he, the said Newt. Blunt, alias Bud Blunt, did then and there, feloniously, wilfully, deliberately, premeditatedly, on purpose, and of his malice aforethought, discharge and shoot off, at, upon, against and in the head of the said Jack Majors; and that the said Newt. Blunt, alias Bud Blunt, with the leaden balls, gunpowder and pistol aforesaid, so had and held and discharged and shot off as aforesaid, did then and there feloniously, wilfully, deliberately, premeditatedly, on purpose, and of his malice aforethought, strike, penetrate and wound him, the said Jack Majors, in and upon the head, giving to him, the said Jack Majors, then and there with the deadly weapon aforesaid, namely, the pistol so loaded and charged, as aforesaid, with gunpowder and leaden balls, and so discharged and shot off as aforesaid, in and upon the head of him, the said Jack Majors, as aforesaid, one mortal wound, of the breadth of one inch and of the depth of four inches, of which mortal wound so inflicted as aforesaid, the said Jack Majors from the twenty-sixth day of December, 1890, until a later hour of the twenty-sixth day of December, 1890, did languish, and, languishing, did live, and on which said twenty-sixth day of December, 1890, the said Jack Majors, at the county of Lawrence, and state of Missouri, of the mortal would aforesaid died; so the grand jurors aforesaid, upon their oath aforesaid, do say and present that the said Newt. Blunt, alias Bud Blunt, him, the said Jack Majors, in the manner and by the means aforesaid, feloniously, wilfully, deliberately, premeditatedly, on purpose and of his malice aforethought did kill and murder, against the peace and dignity of the state.

"(Signed) John T. Sturges,

"Prosecuting Attorney of Newton County."

The testimony in this cause is very voluminous, covering several hundred pages, and it has not been indexed. After reading that testimony under the difficulties attendant on such circumstances, we regard the statement of the conductor of the train, John Gillies, when testifying as a witness, as a substantial statement of the controlling facts in the cause. We, therefore, insert the main portion of his testimony in narrative form, adding thereto hereafter, as occasion may require, brief extracts or results from the confirming testimony of other witnesses. Gillies testified "When the train stopped at Granby, Mr. Majors stepped off on the platform of the depot. There were five or six passengers who got off at the station of Granby, and when Mr. Majors got on the depot platform this man, though I then knew him as a heavy-set man, but whom I now recognize as Blunt, made to come right up the steps of the platform. Mr. Majors said to him: 'Wait a minute till the passengers get out;' but he still pushed up, and I leaned down and says: 'Hold on a minute until they get out.' I stood this way. There was an old man, a little crippled, was the last. I helped him down to the depot platform, and then I took a step off the platform, this way, and says: 'All right, come on.' There was some ladies,...