State v. Borders

• Citation: 199 S.W. 180
• Decision Date: 04 December 1917
• Docket Number: No. 20341.,20341.
• Parties: STATE v. BORDERS.
• Court: United States State Supreme Court of Missouri

199 S.W. 180

STATE v. BORDERS.

No. 20341.

Supreme Court of Missouri, Division No. 2.

December 4, 1917.

Appeal from Circuit Court, Texas County; L. B. Woodside, Judge.

Thaniel N. Borders was convicted of murder in the second degree, and he appeals. Affirmed.

Barton & Impey, of Houston, for appellant. Frank W. McAllister, Atty. Gen., and S. E. Skelley, Asst. Atty. Gen., for the State.

WALKER, P. J.

The defendant was indicted by the grand jury of Texas county in August, 1916, for murder in having shot and killed one Isaac C. Heflin. Upon a trial in said county in November, 1916, defendant was convicted of murder in the second degree and sentenced to ten years' imprisonment in the penitentiary. From this judgment he appeals.

The defendant and the deceased were neighbors, living within 200 or 300 yards of each other in Texas county. Early in the afternoon of August 16, 1916, the deceased and two or three others were at the defendant's house and spent two hours or more laughing, talking, and drinking blackberry wine. After this bout it is evident that the parties were somewhat under the influence of the drink of which they had been partaking. The deceased and one of the parties named Cassaday went out into the yard and began to quarrel, when the defendant went to the door and said he did not want any disturbance or trouble out there. Cassaday and the deceased then re-entered the house. The latter began cursing and talking in a loud tone. Defendant's wife remonstrated with him, when he picked up a chair, and, throwing it violently on the floor, said he was a fighter. Defendant asked him what he meant. Defendant's wife pushed her husband back as he was approaching the deceased and asked him not to hurt the latter, but to get him out of the house. Deceased told him if he wanted to fight to come outside. They went outside and commenced to quarrel. After some words defendant started back into the house, and the deceased followed him. The defendant told the deceased that if he did not go back he would kill him, and, drawing out a pistol, fired it. Deceased did not heed him. By this time the defendant had gotten inside of the house, and he again told the deceased not to follow him, and again fired the pistol. The evidence is indefinite, but it does not appear that either of these shots hit the deceased. At this juncture the deceased's wife came over, and, with the aid of one Audrey Williams, took the deceased or induced him to go away with them. In a few minutes, however, he returned, cursing in a loud tone, and defendant, who was inside of his house, again told him if he came in he would kill him, that he was just warning him before, but if he would not stay out now, he would kill him. Deceased said defendant would kill nothing. When deceased was about halfway between the house and the yard gate, distance not stated, defendant shot him, the weapon used being a shotgun. He staggered and fell in the road just outside the yard gate. The defendant reloaded the gun and walked out to where the deceased was lying. To a passer-by defendant said he tried to keep deceased out every way, but he would come in, and he had to shoot him. While standing about eight feet from where the deceased was lying, defendant fired another shot. Whether this struck the deceased is not disclosed by the testimony. Defendant contends that this shot was accidental. Gunshot wounds appeared on the body of the deceased ranging from his chin to his waist, the greater part of the load striking him in the region of the heart. The difficulty occurred late in the afternoon, and the deceased died at 10 o'clock that night, his body not having been removed from the place where he fell.

Defendant claimed he thought deceased was about to shoot him when he fired the fatal shot. The court instructed the jury on murder in the second degree, defined the technical terms employed in the indictment, and gave the usual instructions as to the province of the jury concerning the credibility of witnesses and the weight to be given their testimony.

The instructions given at the request of defendant defined the latter's rights if the evidence showed reasonable cause for the apprehension of a design on the part of the deceased to kill or inflict great bodily harm upon the defendant or his family. This was followed by the stereotyped instruction as to the presumption of innocence and defining a reasonable doubt. An instruction was also given as to the extent to which the violent and turbulent character of the deceased, if shown, could be taken into consideration in determining whether the defendant had reasonable cause to apprehend that the deceased was about to do him great bodily harm. A cautionary instruction was also asked by the defendant and given as to the manner in which evidence of other crimes, if shown, should be considered by the jury; such consideration to be limited to determining the weight which should be given defendant's testimony.

The errors assigned are that the indictment did not allege the place of the death; that an instruction should have been given on manslaughter; that a peremptory instruction asked by defendant should have been given: and that testimony of an old grudge between the deceased and one Cassaday should have been admitted. These in their order.

I. The Indictment. — The sufficiency of the indictment is assailed. That it formally charges murder in the first degree by shooting with a gun and pistol on the 16th day of August, 1916, at the county of Texas, in the state of Missouri, and the infliction at said time and place of certain mortal wounds by the defendant upon the deceased from which the latter died on the said 16th day of August, 1916, is not questioned. But it is contended, notwithstanding the employment by the pleader of all the formal allegations necessary to charge the offense and a definite statement of the venue, that a defect exists in that the place of the death of the deceased from such fatal shooting and wounding is not specifically stated.

So much of the indictment as is necessary to an intelligent discussion of the objection thereto is as follows:

"Giving to him, the said Isaac C. Heflin, then and there with the deadly weapons, to wit, the pistol and shotgun aforesaid and the gunpowder and leaden balls aforesaid, in and upon the body of him, the said Isaac C. Heflin, divers mortal wounds of the width of one-eighth of an inch and of the depth of five inches, of which mortal wounds the said Isaac C. Heflin, on the said 16th day of August, 1916, died, and so the grand jurors aforesaid," etc.

The indictment, as thus framed, says the defendant, does not apprise him of the nature and cause of the accusation against him and hence deprives him of a fundamental right accorded by the Constitution (article 2, § 22, Const. Mo.). The purpose of the constitutional provision relied upon was that the accused might be definitely informed as to the nature of the charge against him, and that, when determined, it might constitute a complete bar to another prosecution for the same offense. To this end we have said in a number of cases in discussing the application of this provision of our organic law that:

"The charge must contain a certain description...