State v. Brown

• Decision Date: 16 May 1905
• Citation: 188 Mo. 451,87 S.W. 519
• Parties: STATE v. BROWN.
• Court: Missouri Supreme Court

87 S.W. 519

188 Mo. 451

STATE v. BROWN.

Supreme Court of Missouri, Division No. 2.

May 16, 1905.

HOMICIDE—JURORS—PREJUDICE—DYING DECLARATIONS— EVIDENCE—PREMEDITATION—MANSLAUGHTER—INSTRUCTIONS.

1. One is not disqualified by prejudice as a juror on the trial of a negro because admitting that he has some prejudice against the negro race; he stating that he has no such bias or prejudice as will prevent him from impartially trying the case, and it appearing from his examination that he has no prejudice against defendant.

2. Evidence that deceased's wound was necessarily fatal, that his declarations were made shortly before his death, and that therein he stated he was nigh unto death and fully aware that death was certainly approaching, is sufficient foundation for their introduction as dying declarations.

3. The statement in dying declarations that as defendant arose he was reaching in his pocket for his revolver is not a mere statement of a conclusion, but is descriptive of defendant's act in getting his revolver from his pocket, which he did.

4. Evidence that a few hours before defendant went into a restaurant, where he got into a quarrel and shot deceased, he, on hearing harsh words of his hack driver, addressed to one of his horses, but which he thought addressed to him, drew his revolver and directed it towards

the driver, asking if he was speaking to him, is incompetent and irrelevant; and its admission, not being shown to have been harmless, is reversible error.

5. Evidence that, a few hours before defendant quarreled with and shot deceased, he, on a hack driver, with whom he was riding, telling him of a quarrel he had had that day, said: "I am your friend. * * * If you kill a dozen to-day, I don't know anything about it, and they can't make me tell anything; and, if I kill three or four, they can't make you tell"—and that when riding with another, just before the shooting, he showed him his revolver, and said that no one could do anything to him or run a bluff over him, is admissible, as indicating the existence of a frame of mind or disposition from which criminal actions proceed.

6. An instruction that, if the jury can satisfactorily and reasonably infer the existence of deliberation and premeditation, they would be warranted in finding defendant guilty of murder of the first degree, is proper.

7. An instruction which, as an abstract proposition, correctly defines manslaughter, cannot be complained of because not making application of the facts, where followed by an instruction plainly applying the facts to that grade of homicide.

8. An instruction that if the jury find deceased struck defendant with his crutch, and defendant, on such provocation, in hot blood shot and killed deceased through passion thus aroused, but not in necessary self-defense, they should find him guilty of manslaughter in the fourth degree, is substantially correct.

Appeal from Criminal Court, Greene County; J. J. Gideon, Judge.

Tom Brown was convicted of murder, and appeals. Reversed.

M. C. Smith, J. I. Blair, and C. J. Wright, for appellant. H. S. Hadley, Atty. Gen., and Rush C. Lake, Asst. Atty. Gen., for the State.

FOX, J.

This cause is in this court by appeal on the part of the defendant from a conviction of murder of the first degree from the criminal court of Greene county, Mo. The prosecution is based upon an information duly verified by the prosecuting attorney, and, as its validity is not challenged, it can serve no useful purpose to reproduce it.

The facts of this case as developed at the trial, on the part of the state, may be briefly stated as follows: The difficulty occurred in the city of Springfield, Greene county, Mo., at the Queen City Restaurant, on the 27th day of October, 1903. The evidence shows: That Tom Brown is a negro, and that the deceased, W. W. Weir, was a white man. At the time of the difficulty the deceased was employed as a dish washer in the Queen City Restaurant, working at night. It appears that the restaurant had but two rooms, and that in the kitchen was a table where negroes were served; the kitchen was a small room, seventeen by twenty feet. On the night of the difficulty Tom Brown entered the restaurant and ordered a dish of oysters, taking a seat at the serving table in the kitchen. In the kitchen, aside from the serving table in the center, there was a dish-washing table and a range. That in the restaurant when Brown entered were Huffman, the cook, Weir, the dish washer, and Frank Wofford, the waiter. Brown entered the restaurant between twelve and one o'clock at night. He was known to all persons about the restaurant, as he had been in the habit of eating night lunches there. It appears that Weir was a one-legged man, and used a crutch. The evidence shows that, after Brown had eaten his oysters, Weir, who was sitting at the dish-washing table, was taken with a fit of coughing or sneezing, and Brown said to him: "What in the hell is the matter with you? Do you feel better?" and Weir replied: "Go on and leave me alone. I am not bothering you." Brown said, "By God! he didn't have to go out until he got ready." When the talking began, Brown was seated at the table, and Weir was washing dishes. Weir got up, walked five or six feet, and reached for his crutch, which was sitting on the dish-washing table, walked back, and leaned up against the table. Brown said: "Hold on, here. You don't know who I am." To which Weir replied: "Yes; you are a nigger." Brown moved in the direction of Weir, who shoved up his crutch on a level with Brown's chin, and the witness says he thought it struck his chin. Brown took a revolver from his pocket, and, holding it in both hands, pointed it at Weir and fired, shooting him in the abdomen, and causing a wound which extended through the body; and the bullet lodged in the back and on the right side. Weir was removed to a hospital, where he died from the effect of the wound on the 28th day of October, 1903. Brown immediately left the restaurant, with his pistol in his pocket, and was not located until about 2 o'clock in the afternoon of the morning of the shooting. When found he was locked in a room, lying on the floor asleep. His revolver was found on the floor by his side. Brown stated to the officers arresting him: "Well, you got my gun. I guess you got me. If I had got my gun first, we would had a happy moment here. We would all die together." The revolver, which was a 38-caliber Colt's, and had six chambers, five of which were loaded, and one empty, was introduced in evidence at the trial, and identified as having been taken from Brown at the time of his arrest.

William Reese, testifying in behalf of the state, stated: That he was engaged as a hack driver in the city of Springfield at the time of the difficulty. That he met the defendant about 8 o'clock that evening, and he engaged him to take him to a colored dance. Said he wanted to be there at 11 o'clock. At 11 o'clock he called for the defendant, and the defendant went into the Frisco Saloon, saying he wanted to get a drink of gin and a half pint of gin. That on that night he was driving a team of black horses; one of them being named "Tom," and the other "Nick." That he did not know the defendant's name was Tom. Reese stated that, when Brown came out of the saloon and started to step up on the hack, one of the horses started up, and, addressing the horses, he said: "Whoa, Tom, you black son of a bitch! I will break this crutch over you." The witness stated that he looked up, and as he did so the defendant had a gun in his hand, and, addressing him, said, "Was you speaking to me?" to which he replied, "No." On the way to the dance, Reese engaged in a conversation with the defendant and spoke about a quarrel he had gotten into that night, when the defendant remarked: "I am your friend. I am with you. I like you. If you kill a dozen to-day, I don't know anything about it, and they can't make me tell anything; and, if I kill three or four, they can't make you tell." This evidence was objected to by the defendant. The objection was overruled, and exceptions saved.

Ike Walker, another witness testifying in behalf of the state, stated that he was a hack driver in the city of Springfield on the night of the difficulty, and that he drove the defendant home from the dance between half past 12 and 1 o'clock on that night, and in a conversation the defendant showed him a pistol, and remarked that there couldn't no son of a bitch, black or white, do anything to him or run a bluff over him. This evidence was also objected to by the defendant, which objection was overruled, to which the defendant excepted.

The state further offered George W. Arnold, clerk of the criminal court, who reduced to writing the dying declarations of the deceased. Arnold states that, in taking the declarations of the deceased, he wrote them down, as near as he could, as dictated by the deceased. The state then offered the dying declarations over the objection of the defendant, which are as follows: "Said William W. Weir states and declares that he is now sick and nigh unto death, and is fully aware that his death is now certainly approaching him in his present condition from a mortal wound inflicted upon his person, it being a pistol wound, at the time fired upon him by one Tom Brown. The said Tom Brown was under the influence of liquor and was cursing and swearing. I told him to stop swearing and at this moment said Tom Brown started towards me, when I threw up my crutch to ward him off, when he drew a revolver from his pocket and fired upon me. He was then six or eight feet away from me; he answered when I told him to stop that swearing by saying, `You go to hell, I will talk all I want to.' He then walked out of the restaurant quite hastily. At the time said Tom Brown was approaching me I jabbed him with my crutch, as he came toward me. He was sitting at the table when I first spoke to him, and as he arose from the table ...