State v. Brooks

• Decision Date: 05 March 1907
• Citation: 202 Mo. 106,100 S.W. 416
• Parties: STATE v. BROOKS et al.
• Court: Missouri Supreme Court

100 S.W. 416

202 Mo. 106

STATE v. BROOKS et al.

Supreme Court of Missouri, Division No. 2.

March 5, 1907.

1. CRIMINAL LAW—APPEAL—COMPETENCY OF JUROR—DISCRETION.

Where defendants, on an application for a new trial, claimed that one of the jurors who had tried them had falsely stated on his voir dire that he had not formed or expressed an opinion as to defendants' guilt, whether such charge was true in fact was for the determination of the trial court, the decision of which would not be reversed on appeal, in the absence of a clear abuse of discretion.

2. SAME—NEW TRIAL—EVIDENCE OF JURORS.

Where defendants applied for a new trial on the ground that one of the jurors had falsely stated on his voir dire that he had not formed or expressed an opinion as to defendants' guilt, it was competent for the state to introduce evidence of the bad character of the affiants whose testimony had been introduced against the juror, and evidence that the juror was a man of good character.

3. SAME—INSTRUCTIONS—REASONABLE DOUBT —INTELLIGIBILITY.

The court charged that defendants were presumed to be innocent, and that it devolved on the state to prove by evidence beyond a reasonable doubt that defendants committed the crime as charged, and if, in view of the whole case, the jury had a reasonable doubt of defendants' guilt, or of that of either of them, the jury would give them, or either of them of whose guilt it had a reasonable doubt, the benefit thereof, and acquit them, or either of them of whose guilt the jury had such reasonable doubt, but that a reasonable doubt, to authorize an acquittal, must be a substantial doubt of defendants' guilt, formed on a careful consideration of all the facts and circumstances proven in the case, and not a mere possibility of innocence, etc. Held, that the instruction was not objectionable as unintelligible.

4. SAME—REFUSAL OF REQUESTS.

Such instruction constituted a sufficient charge on such question, and justified the refusal of defendants' requests thereon.

5. WITNESSES—IMPEACHMENT—PRIOR CONVICTION.

Where accused was a witness in his own behalf, the state was authorized to introduce the record of his former conviction and sentence for a different offense to affect his credibility under the express provisions of Rev. St. 1899, § 4680 [Ann. St. 1906, p. 2549].

6. CRIMINAL LAW—APPEAL—BILL OF EXCEPTIONS — PRESERVATION OF OBJECTIONS.

Alleged objectionable remarks of counsel for the state, in a prosecution for homicide, could not be reviewed on appeal, where they were sought to be preserved by affidavits only, and not by a bill of exceptions.

7. HOMICIDE—EVIDENCE.

In a prosecution for homicide, evidence held to sustain a conviction of defendants for murder in the first degree.

Appeal from Circuit Court, Iron County; Joseph J. Williams, Judge.

John and Ameleck Brooks were convicted of murder in the first degree, and they appeal. Affirmed.

D. & L. Rivers and Chester H. Krum, for appellants. The Attorney General and N. T. Gentry, for the State.

GANTT, J.

On the 27th of September, 1905, the prosecuting attorney of Iron county, filed an information, duly verified, charging the defendant John Brooks with murder in the first degree of John Clemonds, and in the same information charging Ameleck Brooks with being present, aiding, assisting, and procuring John Brooks in the commission of said murder. The defendants were duly arraigned and put upon their trial at the April term, 1906, of the Iron county circuit court, and were both convicted of murder in the first degree. In due time they filed their motions for a new trial and in arrest of judgment, which were overruled, and they appeal to this court.

The evidence on behalf of the state tended to show that the defendants were and are brothers, and on the day of the homicide, resided in the town of Graniteville, in Iron county. A railroad runs east and west through the town of Graniteville, and the main street crosses this railroad track at right angles. On the south side of the railroad track, and on the west side of this main street, was situated Kerwin's saloon on the date of the homicide herein described. This saloon was a few feet west of the street, and about 30 feet south of the railroad track, and the building was about 45 feet in length from east to west. Between this saloon and the railroad track was situated a rack for tying horses. The saloon had two windows opening to the north, a front door on the east, and a back door on the west end. On the east side of this main street and also south of the railroad track, was another saloon known as Steffen's. On the 12th of August, 1905, between 7 and 8 o'clock in the evening, Ameleck Brooks was in Steffen's saloon, and saw one Gus Mead sitting on the ground near the railroad track northwest of Kerwin's and the railroad. In company with Mead, there were several others and they were all drinking beer out of a can. It was sufficiently light for people to see and recognize the members of this party from the main street. When Ameleck Brooks saw Mead and his crowd he took off his coat and gave it to Ed. Belcher to hold for him and said, "Watch me." By the side of Mead on the ground was a double, breechloading shotgun, both barrels of which were loaded with BB shot. Mead testified that he had started out into the field to fire off his gun in order to clean it, and met these friends and stopped to drink with them. The testimony for the state tended to show that Ameleck Brooks ran up behind Mead and began to assault him. Mead resisted and got hold of his gun, when Ameleck Brooks also grabbed it and called to his uncle William to come and help him; that John Brooks, the other defendant, rushed in at this stage of the difficulty, and drew his knife and forced Mead to give up his gun. John Brooks then compelled Mead's companions to stand back and permit Ameleck Brooks to punish Mead by pounding him. It appears that the difficulty between Ameleck Brooks and Mead grew out of some remarks which Ameleck Brooks attributed to Mead derogatory of Ameleck. Mead insisted that he had not made the remarks, but that they had been made by John Clemonds. Having punished Mead, Ameleck Brooks called the deceased by name, and said that if he had any nerve he would come out and show himself. Ameleck then said to his brother John: "Shoot the first son of a b____ that shows his head around the corner." Or, as some of the other witnesses testify: "Shoot John Clemonds, the son of a b____, when he shows his head around the corner." The testimony indicates that the deceased also went by the name of John Hall, and some of the witnesses testified that Ameleck alluded to him as John Hall. On the part of the state the evidence further shows that while this assault on Mead was being perpetrated, the deceased, John Clemonds, was standing in front of Kerwin's saloon, and apparently ignorant of the fight that was going on on the north side of it. Hearing his name called, he walked around the corner to the north and west, and a few feet from the corner of the saloon, when he saw John Brooks with a shotgun in his hand pointing towards him. The state's testimony tended to establish that as the deceased went around this corner in the direction of the fight, he passed between Belcher and the corner. When he discovered John Brooks, the defendant, with a shotgun, deceased turned and walked back towards the front of the saloon. Some one fired a pistol shot about this time, and the shot took effect in the left lung of Ameleck Brooks, and almost simultaneously John Brooks fired the shotgun, and the load took effect in the back of the deceased, just above the left hip. The deceased fell on his face about three feet east of the hitching rack; his face being in an opposite direction from John Brooks. Immediately after he was shot several persons took the body of the deceased into Kerwin's saloon, but the bartender suggested that it was too warm in there, and they took him out and laid him on the ground. In the deceased's pocket was found a 38-calibre pistol, which was taken possession of by his brother, and later in the evening, was turned over to the sheriff of the county, Mr. Marshall, who produced it at the trial. The evidence tended to show that there was one empty shell in the revolver, and four loaded cartridges. The state's witnesses, who were nearest to the deceased at the time he was shot, were positive that deceased never fired a pistol at either of the defendants; that he had no pistol in his hand, and made no motion whatever indicating an attempt to use said pistol. These witnesses also testified that someone at least 30 feet from the deceased fired the pistol which wounded Ameleck Brooks. There was also evidence of threats made by Ameleck Brooks against the deceased at different times and places prior to the time of the homicide. Dr. Marshall, a physician residing in Ironton, was summoned, and examined the body that night about 10 o'clock, and he testified that he found about 50 shot had entered the back of the deceased producing the wound which caused his death.

On the part of the defendants the testimony tended to prove that Ameleck Brooks felt indignant at something Gus Mead had said about him, and concluded he would chastise him, and accordingly he began striking Mead, and, when Mead resisted, Ameleck called for his uncle and his brother to aid him; that John Brooks then took Mead's gun from him and stood guard while Ameleck finished his fight with Mead. In the course of their engagement, Mead denied the statements attributed to him, and said that the deceased had made said...