State v. Burns

• Decision Date: 21 February 1899
• Citation: 148 Mo. 167,49 S.W. 1005
• Parties: STATE v. BURNS.
• Court: Missouri Supreme Court

49 S.W. 1005

148 Mo. 167

STATE v. BURNS.

Supreme Court of Missouri, Division No. 2.

February 21, 1899.

HOMICIDE — INDICTMENT — WIFE MURDER — WITNESS AS DEPUTY SHERIFF — POLLING JURY — WITNESSES — IMPEACHMENT.

1. An indictment alleging that accused, feloniously, willfully, deliberately, premeditately, and with malice aforethought, assaulted deceased, by feloniously, deliberately, premeditately, and with malice aforethought shooting her, thereby deliberately, premeditately, feloniously, willfully, and with malice aforethought inflicting a mortal wound, sufficiently charges that the killing was felonious, deliberate, and premeditated.

2. An application for a continuance in a capital case is addressed largely to the discretion of the court.

3. A husband who kills his wife because of jealousy, or because she is unfaithful, is guilty of murder in the first degree.

4. In a prosecution for wife murder, a witness who had testified that accused would not kill his wife because he loved her may, after laying the proper predicate, be impeached by showing that, immediately after the shooting, she stated that accused had said, if he ever saw his wife again, he would kill her, and that he had made his word good.

5. Permitting a deputy sheriff, after having testified as a witness, to assist the sheriff about the court room, does not prejudice accused, where he had no connection with the jury, and did not summon or select any jurors.

6. The court need not poll the jury on its own motion, in a capital case.

7. Counsel in a capital case may, in commenting on the evidence of a witness, repeat the testimony of an impeaching witness.

Appeal from circuit court, Scott county; Henry C. Riley, Judge.

William Burns was convicted of murder, and he appeals. Affirmed.

Albert Dereign, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, Asst. Atty. Gen., for the State.

GANTT, P. J.

The defendant, a negro man, was convicted, in the circuit court of Scott county, of murder in the first degree, and appeals from the sentence. The defendant and his wife, Mag Burns, resided with the defendant's mother, in the town of Commerce, in Scott county. They had been married about two years. The evidence shows that defendant had maltreated his wife, and she had left him several days prior to the 24th of July, 1897. On the morning of that day, the wife called upon the constable, Mr. Watson, and requested him to go with her to her husband's home, to get her clothing, saying she was afraid to go by herself, that he would kill her. The constable accompanied her. The defendant was not at home when they first went to the house. The constable asked defendant's mother to give the wife her clothing, but she refused. While they were talking in the yard in front of the house, defendant returned, and the constable told defendant what they wanted. He replied, "All right," passed into the house, and soon emerged with a double-barrel shotgun in his hands, and opened fire, first shooting the constable, and, as his wife ran, he shot her in the back, the load going entirely through her body. The constable managed to get back to the marshal's office, and sent him to arrest defendant. The defendant's wife died almost instantly, in the garden of the lot on which she was shot. At the October term, 1897, the grand jury returned the following indictment: "State of Missouri, County of Scott — ss.: In the Scott County Circuit Court, October Term, A. D. 1897. The grand jurors for the state of Missouri, duly impaneled, charged, and sworn to inquire within and for the body of Scott county, Missouri, upon their oaths present and charge that one Will Burns, at the county of Scott and state of Missouri, on the 24th day of July, A. D. 1897, in and upon one Mag Burns, then and there being, feloniously, willfully, premeditately, deliberately, on purpose, and of his malice aforethought, did make an assault, and with a dangerous and deadly weapon, to wit, a shotgun, loaded then and there with powder and leaden balls, which he, the said Will Burns, in his hands then and there had and held at and against her, the said Mag Burns, then and there, feloniously, willfully, premeditately, deliberately, on purpose, and of his malice aforethought, did shoot off and discharge, and, with the shotgun aforesaid and the leaden balls aforesaid, then and there, feloniously, willfully, premeditately, deliberately, on purpose, and of his malice aforethought, did shoot, strike, and penetrate and wound her, the said Mag Burns, in and about a vital part of the body of her, the said Mag Burns, to wit, in the back part of the body of her, the said Mag Burns, giving to her, the said Mag Burns, at the said county of Scott and state of Missouri, on the said 24th day of July, 1897, with the dangerous and deadly weapon, to wit, the shotgun aforesaid, and the powder and leaden balls aforesaid, in and upon the back part of the body of her, the said Mag Burns, one mortal wound, of the width of about one inch, and of the depth of about three inches, of which said mortal wound she, the said Mag Burns, at the county of Scott and state of Missouri, on the said 24th day of July, 1897, then and there, of the mortal wound aforesaid, instantly died; and so the grand jurors aforesaid do say that he, the said Will Burns, her, the said Mag Burns, in the manner and by the means aforesaid, feloniously, willfully, premeditately, deliberately, on purpose, and of his malice aforethought, at the said county of Scott and state of Missouri, on the said 24th day of July, A. D. 1897, did kill and murder, against the peace and dignity of the state." The court, on application of defendant, appointed counsel to defend him. The cause was continued, on application of defendant, to the April term, 1898. At the April term a motion to quash the indictment was filed, heard, and overruled. Another application...