State v. Brown

• Decision Date: 01 February 1904
• Parties: STATE v. BROWN.
• Court: Missouri Supreme Court

79 S.W. 1111

181 Mo. 192

STATE v. BROWN.

Supreme Court of Missouri. Division No. 2.

February 1, 1904.

MURDER — EVIDENCE — INSTRUCTIONS — MOTIVE — EXPERT WITNESSES — HYPOTHETICAL QUESTIONS — REMARKS OF COUNSEL — ERRORS — HOW PRESERVED — INFORMATION — FAILURE TO VERIFY — HOW RAISED — WAIVER OF DEFECT.

1. The statement of the prosecuting attorney on a trial for murder to the jurors, on their voir dire examination, as to what the state expects to prove, is not prejudical error.

2. As voluntary intoxication is no excuse for crime, the exclusion of evidence on a trial for murder as to how defendant acted when drunk, or that he was drunk the night before the killing, was not error.

3. On cross-examination of defendant, on trial for murder, the asking of a question to which defendant's objection is sustained does not constitute reversible error.

4. A witness testifying to the good reputation of defendant, on trial for murder, may be asked on cross-examination if he had heard of a previous assault by defendant on decedent.

5. The exclusion of a hypothetical question asked an expert witness, based on matters not proved by the evidence in the case, is not erroneous.

6. An expert witness on a criminal trial cannot give his opinion as to whether the accused was capable of judging right from wrong, that being a question for the jury.

7. On a trial for murder, evidence as to whether decedent, defendant's stepdaughter, had, prior to the killing, and on occasions separate from the time of the killing, called defendant opprobrious names, was inadmissible.

8. Refusal to permit defendant, on trial for murder, to go into details of his arrest for disturbance of the peace, incidentally brought out on cross-examination, was not erroneous, as the testimony sought to be given did not prove or disprove any of the issues involved in the case.

9. Where the instructions in a criminal case fully and correctly declared the law applicable to the evidence, it was not error to refuse other instructions, though they contained correct statements of the law.

10. In determining the guilt of defendant, on trial for murder, the jury should take into consideration testimony as to his character for peace and quietness, and should give such testimony the weight they deem proper; but, if they are satisfied of defendant's guilt, his previous good character cannot mitigate the offense, and does not warrant an acquittal.

11. Where, on trial for murder, there is no doubt surrounding the killing, or the manner in which it was done, and defendant, testifying in his own behalf, furnishes the only reason and motive for killing, which was that decedent applied to him a vile name, an instruction that the failure of the evidence to show motive is a circumstance in favor of innocence is properly refused.

12. In the absence of evidence on which to predicate a requested instruction, it is not error to refuse it.

13. The mere fact that defendant, on trial for murder, frequently became intoxicated, is not sufficient to warrant an instruction submitting the question of defendant's insanity.

14. Where, on trial for murder, the testimony clearly indicates that defendant was in possession of all his mental faculties, and comprehended the act he was committing, an instruction submitting the question of defendant's insanity is properly refused.

15. Where, on a prosecution for murder, there was no evidence indicating that defendant had a weakened or diseased mind, nor any evidence showing the extent of his use of intoxicating liquors, an instruction that, if his mind was so weakened and diseased from the continued use of intoxicants as to prevent him from deliberating on the act he committed, the jury should find him guilty of murder in the second degree, was properly refused.

16. Errors arising from the improper remarks of the prosecuting attorney in his argument to the jury in a criminal case must be preserved in the record, before the appellate court will review them.

17. Where no motion to quash an information because it was not verified is filed, the defect is not available by motion in arrest of judgment, though the motion specifies that the information was not verified.

18. A demurrer to an information does not reach the defect that it was not verified or supported by affidavit.

19. As the purpose of the verification is to secure good faith in the institution of criminal proceedings, and to guard against groundless prosecutions, and is not a constitutive part of the information, but an extraneous paper supporting it, a failure to verify an information may be waived.

20. A defendant, in order to avail himself of the failure of the prosecution to verify the information, must save his objections by motion to quash, duly preserved in a bill of exceptions, and renewed in his motion in arrest of judgment.

Appeal from Criminal Court, Jackson County; Jno. W. Wofford, Judge.

James Brown was convicted of murder, and appeals. Affirmed.

R. J. Holmden, for appellant. E. C. Crow and C. D. Corum, for the State.

FOX, J.

At the March term, 1902, of the Jackson county criminal court, the prosecuting attorney of Jackson county filed in said court his information, charging the defendant with murder of the first degree. The person charged to have been killed was one Laura Hiblar, the stepdaughter of the defendant, aged about 14 years. The defendant was duly arraigned, and entered his plea of not guilty. The correctness of the information upon which defendant was tried and convicted is not challenged by the appellant, hence its insertion in this statement will serve no needful purpose.

The facts developed in this case are few. They are substantially as follows: The defendant was about the age of 45 years at the time of the murder. His victim was of about the age of 14 years. The domestic relations of the defendant and his wife were not harmonious. It appears that the defendant was frequently given to the use of alcoholic drinks, and, because of this delinquency, his wife and himself disagreed, and lived apart more often than together. The defendant, however, on the night preceding the tragedy, stayed at the home of his wife and stepdaughter. His stepdaughter had been to a party on that night. The defendant arose earlier on the morning of the tragedy than his stepdaughter, whom he killed, and requested her to also arise. He states that, instead of doing this, she applied to him a vituperative name — "a drunken son of a bitch" — and that thereupon, and without other cause, he went into the kitchen and procured a large club, returned to the room where she lay, and struck her a vicious blow on the head, producing hemorrhage and death. He states that she was sitting in the bed at the time she used the abusive language towards him, and that her face was turned from him. He states that she remained in this position during the interim he was after the club, and that he found her thus situated on his return, and struck her at a time when her back was towards him. He gives no motive for the crime, other than that he was beside himself by reason of the language used by his stepdaughter; and he seems to attempt to convey the idea that he was unable to realize the heinousness of his offense, or the effect of what he did. The defendant testified in his own behalf, and practically admitted all the facts as proven by the state. He details minutely all the facts connected with the killing of this 14 year old girl. Says she was in bed. He told her to get up. That she told him he was a "drunken son of a bitch." He walked deliberately back to the kitchen, secured the stick with which the murder was committed, returned (she was in a sitting posture in bed), and, without any further conversation, he struck the fatal blow which resulted in her death. Other witnesses testified as to the defendant's good reputation as a peaceable and law-abiding citizen.

The court gave the following instructions to the jury trying the cause:

"(1) The information in this case was filed by the prosecuting attorney on the 11th day of March, 1902, and charged the defendant with murder in the first degree. Murder in the first degree is the willful, felonious, deliberate, and premeditated killing of a human being with malice aforethought. Murder in the second degree has all the elements of murder in the first degree, except that of deliberation. As used in these instructions, the word `willful' means intentional, not accidental. `Felonious' means wickedly and against the admonition of the law; unlawfully. `Deliberately' means in a cool state of the blood. It does not mean brooded over, considered, reflected upon for a week, a day, or an hour, but it means an intent to kill, executed by a party not under the influence of violent passion suddenly aroused by some unlawful provocation, but in the furtherance of formed design to gratify a feeling of revenge, or to accomplish some other unlawful act. And the passion here referred to is that only which is produced by what the law recognizes as a just or lawful cause of provocation. `Premeditated' means thought of beforehand for any length of time, no matter how short the time. `Malice,' as used here, does not mean mere spite or ill will, as generally understood, but signifies an unlawful state of the mind, and such state of the mind as one is in who intentionally does an unlawful act. `Aforethought' means thought of beforehand. In defining the words `just or lawful' cause of provocation to passion, as used in these instructions, the court instructs the jury that opprobrious epithets or insulting gestures, when applied to a person, constitute a just cause of provocation to passion. If the person to whom they are applied is thereby aroused to a sudden heat of passion, and, before such passion has had time to cool, with a deadly weapon kills the person who applies such opprobrious epithets or gestures to him, then such killing is done without deliberation, and...