State v. Branstetter

• Citation: 65 Mo. 149
• Parties: STATE OF MISSOURI v. BRANSTETTER, APPELLANT.
• Decision Date: 30 April 1877
• Court: United States State Supreme Court of Missouri

65 Mo. 149

STATE OF MISSOURI

v.BRANSTETTER, APPELLANT.

Supreme Court of Missouri.

April Term, 1877.

Appeal from Audrain Circuit Court.--HON. GILCHRIST PORTER, Judge.

W. O. Forrist, McFarlane & Trimble, for appellant.

1. It is misconduct on the part of a jury, in arriving at a verdict in a case of felony, to agree among themselves that each juror shall secretly ballot a number, representing the number of years that he thinks the accused should be confined in the penitentiary, and that the twelve numbers thus secretly balloted shall be added together, and the sum thereof shall be divided by twelve, and that the whole numbers in the quotient thus obtained shall be the punishment of the accused at all events and absolutely; and in pursuance of such agreement, to so find a verdict and assess the punishment of the accused is such misconduct that the verdict will be set aside. Sawyer v. Han. & St. Joe R. R. Co., 37 Mo. 264 ;Mitchell v. Ehle, 10 Wend. 595; Thompson v. Perkins, 26 Iowa 486; Ruble v. McDonald, 7 Clark 90; Elledge v. Todd, 1 Humph. 43; Peckham v. Henry, 6 Sm. & M. 55; Grinnell v. Phillips, 1 Mass. 530; Dorr v. Fenno, 12 Pick. 521; Whar. Crim. Law, Sec. 3148; Monroe v. State, 5 Geor. 85; Dunn v. Hall, 8 Blackf. 32; Richard v. Booth, 4 Wis. 67; Crabtree v. State, 3 Sneed 302.

2. When facts are shown to the court by evidence aliunde, giving it cause to believe that such misconduct of the jury has given a wrong direction to its verdict, in a case involving life or liberty, then a juror, so rendering a verdict, becomes a competent witness to explain or enlarge the aliunde evidence of such misconduct. Praite v. Coffman, 33 Mo. 78; Farrar v. State, 2 Ohio St. 57.

3. When the State shall call for an admission of the accused given in a conversation, the accused will be entitled to put in evidence all he said during the same conversation on the subject of the prosecution. 2nd Russell on Crimes, 868.

4. It is the duty of a court in the trial of a criminal prosecution to give proper instructions defining each crime of which under the indictment the accused can be convicted, and of which there is evidence in the case; and not to do so is error. State v. Cooper, 45 Mo. 65; Wag. Stat. p. 1106, Sec. 30. State v. Sloan, 47 Mo. 604.

5. The criterion or distinctive feature between the crimes of murder in the second degree and of manslaughter is that in the former the homicidal act is characterized by malice; in the latter not. 1st Wag. Stat. p. 446, Sec. 2, Id. ib. Sec. 18, p. 447; 2nd Broom & Hadley's Black. Com. 481, 476; Hale's P. C., Vol. 1, p. 424, p. 466, p. 449; 1st East. P. C. p. 218, Foster C. Law, p. 290; 5 Curby 304; Dennison v. State, 13 Ind. 510; Hoss v. State, 18 Ind. 349; Long v. State, 46 Ind. 582; Selfridge's case, Harr. & Thomp. Self Def., 4 et seq. 6. While the law will infer malice from the deliberate use of a deadly weapon upon the person of another, still when it is further shown that such use is under legal provocation given by the party upon whom it is used, such as a vigorous personal assault, then such inference of malice is overcome, and the act is imputed to the hot blood resulting from such provocation; and if death results from the use of such weapon, the crime is manslaughter and not murder. Roscoe Crim Evi., 737 et seq.; Wharton Homicide, 2d ed. § 398; 3 Greenleaf Evi., 122 et seq.; Reg. v. Smith, 8 Carr & P. 160; State v. Turner, Wright (Ohio) 20; Stone v. Town, ib. 75; 2 Bish. Crim. Law, §§ 797-8-9; Roberts v. State, 14 Mo. 138; State v. Holme, 54 Mo. 165; State v. Starr, 38 Mo. 277.

Fagg and Biggs for appellant.

J. L. Smith, Attorney General, for the State.

Defendant's statements, made after the warning by Brashear, were no longer answers to Glasscock and were therefore inadmissible.

The instructions given on the part of the State were correct. State v. Harris, 59 Mo. 550; State v. Hays, 23 Mo. 287; State v. Underwood, 57 Mo. 40: 1 Wag. Stat. 446, § 4.

The juror Ewing was not a competent witness to prove how the jury arrived at their verdict. Woodward v. Leavitt, 107 Mass. 453; 25 Cal. 398; McFarland v. Bellows, 49 Mo. 311; 3 Grah. and Wat. New Trials, pp. 1428 et seq.

Defendant does not contend that the verdict of guilty was reached by the jury through any previous agreement, but only that the term of punishment was thus fixed. The conviction was therefore good. Kelley's Crim. Law, § 395 p. 208; Dana v. Tucker, 4 Johns. 487. Even if there was misconduct on the part of a jury in assessing the punishment, this will not vitiate the entire verdict but only that part assessing the punishment, and the verdict will then stand as a verdict of guilty only and the provisions of section five, page 1108, Wagner's Statutes, will govern further proceedings thereon, and the record showing that the court proceeded to sentence the defendant for a term different from that fixed by the jury as provided by that section, the judgment should stand.

HENRY, J.

At the January term, 1877, of the Audrain Circuit Court, the defendant was indicted for murder in the first degree, charged with killing Jefferson D. Lowry. At an adjourned term of said court, held in February, 1877, the defendant was tried, convicted of murder in the second degree, and his punishment assessed by the jury at imprisonment in the penitentiary for a term of eighty-three years, but the court commuted it to sixty years and sentenced him for that term. From this judgment of the Circuit Court he has appealed to this court. The grounds upon which it is urged that the judgment should be reversed are, that the court did not instruct the jury in regard to manslaughter, but confined its instructions to murder in the first and second degree and excusable homicide; that the court refused to permit Glasscock, a witness for the State, after he had testified to a part, to detail all of a conversation he had with defendant in relation to the killing of Lowry; that the jury were guilty of misconduct, in first agreeing that each should set down on a slip of paper the term for which he thought defendant should be confined in the penitentiary, and then divide the aggregate of these figures by twelve and make the quotient their verdict; that this agreement was carried out, and the result was the verdict returned into court. On a motion for a new trial the defense offered to prove this by a member of the jury, but the court refused to permit the juror to testify. The evidence tended to prove the following facts: On the day that the homicide occurred, the defendant and the deceased, with others, were at a saloon in the town of Vandalia, when defendant and one Hampton quarreled over a game of cards, each claiming the game, and in the course of the controversy, defendant boastfully remarked that he “was the best man in Vandalia.” Deceased then pulled off his overcoat and approached defendant, who said: “Why, Jeff, I did not know you were here,” and soon after left the saloon, and in company with his brother and another person went to Fry's store. Deceased soon after followed, accompanied by several persons. He approached Fry's store, but the door was closed and locked. It seems that deceased remained in front of Fry's store a little while, and then went off a short distance, when the door was unlocked and defendant again went out, and deceased approached him, laid his hand on him, or took him by the collar, and said to defendant, “You drew a pistol on me.” Defendant said, “No, I didn't.” Lowry said, “Yes, you did.” By this time defendant was against the wall of the building, deceased still having his hand on him, and as he, the second time, denied having drawn a pistol on deceased, discharged his pistol with fatal effect. Two witnesses for the State thought he did not take the pistol out but fired it from his pocket, but another witness for the State testified that he drew his pistol, that he saw the pistol and the flash, but all agree that it was not elevated above the pocket in which it was carried. The ball entered the stomach of the deceased, who lingered a few days and died. There was no evidence of any previous difficulty between the parties or of any unfriendly feeling on the part of defendant toward the deceased. They had both been drinking, and defendant after he left the dram-shop was boisterous, and spoke of Sam Harris, Lawson Henry, Myers and others, who, he said, had been imposing upon him long enough, and “he'd be d____d if he didn't intend to sell out,” but in none of his conversations in that connection did he mention the name of deceased.

1. PRACTICE, CRIMINAL: instructions.

2. INSTRUCTIONS: murder: manslaughter: excusable homicidc.

The court instructed the jury as to what constitutes murder in the first and second degree and excusable homicide, but did not give, nor did defendant's counsel ask, any instructions in regard to manslaughter in any degree, but the counsel now contends that it was the duty of the court to instruct the jury as to manslaughter, because under the indictment and evidence they might with propriety have found defendant guilty of manslaughter in the second or fourth degree, if they found him guilty of any crime at all. We are satisfied from the evidence, that an instruction declaring what constitutes manslaughter in the fourth degree, would have been proper. In The State v. Starr, 38 Mo. 277, the court held that “where there is a lawful provocation, the law, out of indulgence to human frailty, will reduce the crime of killing from that of murder to manslaughter, but neither words of reproach, how grievous soever, nor indecent, provoking actions or gestures, however much calculated to excite indignation or arouse the passions, are sufficient...