State v. Boyer

• Decision Date: 07 February 1911
• Citation: 134 S.W. 542,232 Mo. 267
• Parties: STATE v. BOYER.
• Court: Missouri Supreme Court

134 S.W. 542

232 Mo. 267

STATE v. BOYER.

Supreme Court of Missouri, Division No. 2.

February 7, 1911.

1. HOMICIDE (§ 325)—APPEAL—SUFFICIENCY OF OBJECTION BELOW.

Testimony that prior to the homicide defendant flourished a pistol in the face of another was not objected to, so as to allow review of the propriety of its admission, where the only objection was to a subsequent question asking for his reason for so flourishing it.

2. HOMICIDE (§ 169)—EVIDENCE.

For the purpose of throwing light on the reason of defendant for firing the shot at R. which struck deceased, this being as a dance, promoted by defendant, was breaking up, and while R. was standing at the door making a disturbance, evidence that defendant, an hour and a half before, when he ejected R. from the hall, flourished a pistol in the face of C., cannot be said to be incompetent.

3. CRIMINAL LAW (§ 786)—INSTRUCTIONS AS TO CREDIBILITY OF DEFENDANT.

Instructing that, in determining what weight and credibility the jury shall give defendant's testimony, they may consider as affecting his credibility his interest in the result, together with the fact that he is the accused on trial, testifying in his own behalf, is not error.

4. HOMICIDE (§ 232) — DELIBERATION AND PREMEDITATION—EVIDENCE.

Though R., at whom defendant fired, when he shot deceased, testified that he and defendant were good friends, and on friendly terms at the time, and had never had any trouble, evidence that R., having been standing outside a door, talking loudly and defying N. to come out, defendant came out pistol in hand, stepped up to R., and saying, "Will you behave?" snapped the pistol twice at R., and, on R. running, fired at him again, hitting deceased, who was standing in the line of R.'s flight, whereon defendant exclaimed, "I have killed the wrong man," shows deliberation and premeditation, authorizing conviction of murder in the first degree.

5. CRIMINAL LAW (§ 655) — REMARKS OF COURT—VOIR DIRE EXAMINATION OF JURY.

For the court, on the examination of the jury on their voir dire, explaining at length the law in regard to the right of the jury to determine whether defendant should receive the death penalty in case of conviction, or be sentenced to the penitentiary for life, to state that, as the death penalty might be regarded as the proper punishment in case of conviction, jurors should qualify on the question as to whether or not they had conscientious scruples against capital punishment, cannot be considered to have a tendency to prejudice the jury against defendant.

6. CRIMINAL LAW (§ 639) — TRIAL — STATEMENT OF CASE TO JURY BY SPECIAL COUNSEL FOR THE STATE.

The stating of the case to the jury by special counsel for the state, instead of by the regular prosecuting attorney, is not error.

Appeal from Circuit Court, Washington County; Jos. J. Williams, Judge.

Henry Boyer was convicted of murder, and appeals. Affirmed.

E. W. Major, Atty. Gen., and Jas. T. Blair, Asst. Atty. Gen., for the State.

FERRISS, J.

Defendant was convicted in the circuit court of Washington county of murder in the first degree, and sentenced to the penitentiary for life.

The homicide was committed on the 4th day of October, 1907, upon one Thomas Trokey. The evidence on the part of the state tended to show that on the night of October 4, 1907, a dance was held at Cadet, Washington county, which was attended by some 30 or 40 persons, including defendant and deceased. There was music, dancing, drinking, and quarreling. The defendant and one Ralls promoted and were in charge of the dance. Deceased was one of the musicians, and in no way participated in any disorder. After the ball was over, about 11:30 or 12 o'clock at night, one Wilfred Roussan was standing outside the door, defying one Frank Nephew to come outside and be whipped. Defendant stepped out of the door, took hold of Roussan, and pointed his pistol at him, snapping it twice; the cartridges missing fire. At this juncture Roussan turned and ran between defendant and the deceased. Defendant pulled the trigger the third time, and this time the cartridge exploded; the ball striking deceased in the temple, killing him instantly. After the killing defendant fled, and was not apprehended until in January, 1910, when he was found in the state of Louisiana. The evidence further showed that, about an hour and a half or two hours prior to the shooting, defendant had ejected Wilfred Roussan from the hall, but the evidence fails to show anything further in connection with this incident; that is, whether there was any quarreling or fighting, or any words exchanged between the parties on that occasion.

The evidence on the part of the defense tended to show that the shot which killed the deceased was accidentally fired during a scuffle between defendant and others who were engaged in an effort to wrest the weapon from defendant's grasp. Defendant also introduced evidence tending to show that his reputation was good. Any further evidence necessary to an understanding of the case will appear in connection with the opinion.

The court gave instructions such as are ordinarily and properly given under the charge of murder in the first degree, and also the following instructions, complained of by defendant:

"(2) You are further instructed that if you believe and find from the evidence that defendant and another person, mentioned in the evidence, at any time before the filing of the information in this case, that is to say, at any time before the 15th day of February, 1910, in Washington county, and state of Missouri, gave a dancing party, at which Wilfred Roussan and Boss Courtois and other persons were present, and if you believe and find from the evidence that Thomas Trokey, being present at said dancing party, was then and there shot and killed by the defendant, and if you further believe and find from the evidence that during the progress of said dancing party, and shortly before said Thomas Trokey was so shot and killed, the defendant had some altercation with the said Boss Courtois in the room in which said dance was given, and that he then and there menaced said Boss Courtois with a pistol, then you are instructed that such altercation and menacing of said Boss Courtois with a pistol by the defendant is not a matter for your consideration in the trial of this case, and you should not consider it in making up your verdict as to the guilt or innocence of the defendant, except in so far as you may from the evidence believe and find that said incident may throw light upon the reason of the defendant for the firing of the shot which resulted in the death of said Thomas Trokey, if you in fact believe and find from the evidence that said incident, if it took place, throws any light on the reason for the firing of said shot."

"(6) You are further instructed that the defendant is a competent witness in this case, and that you must consider his testimony in arriving at your verdict; but you, in determining what weight and credibility you should give his testimony in making up your verdict, may take into consideration, as affecting his credibility, his interest in the result of the case, together with the fact that he is the accused party on trial, testifying in his own behalf."

Defendant's grounds for a new...