State v. Conley

• Decision Date: 17 February 1914
• Citation: State v. Conley, 255 Mo. 185, 164 S.W. 193 (Mo. 1914)
• Parties: STATE v. CONLEY.
• Court: Missouri Supreme Court

164 S.W. 193

255 Mo. 185

STATE v. CONLEY.

Supreme Court of Missouri, Division No. 2.

February 17, 1914.

1. HOMICIDE (§ 127)—SUFFICIENCY OF INFORMATION —FELONIOUS INFLICTION OF FATAL WOUND.

An information for murder, charging that defendant feloniously, willfully, premeditatedly, and of his malice aforethought made an assault with a dangerous and deadly weapon, to wit, a loaded revolver, which he used feloniously, etc., and shot and struck deceased upon his face and head, feloniously, etc., of which wound deceased died, in which manner and by which means defendant feloniously, etc., murdered deceased, was not defective in failing to affirmatively charge that the infliction of the fatal wound was done feloniously, etc., and sufficiently complied with Const. art. 2, § 22, entitling defendant to demand the nature and cause of the accusation against him.

2. CRIMINAL LAW (§ 1059)—APPEAL—SUFFICIENCY OF EXCEPTION.

Where defendant objected and saved an exception for that the instructions did not declare all the law necessary to the proper determination of the case on the issues raised by the evidence, but did not specifically object to a failure to instruct on manslaughter in the fourth degree, and in his motion for a new trial specifically urged error in that the court failed to instruct thereon, the point was properly saved.

3. HOMICIDE (§ 23)—DEGREES—"MURDER IN THE SECOND DEGREE."

A willful killing with malice aforethought, that is, with malice and premeditation, but not with deliberation or in a cool state of blood, is "murder in the second degree"; nor can any homicide be murder in that degree unless the act was committed with malice, that is, with malice and premeditation.

4. HOMICIDE (§ 31) — DEGREES — "MANSLAUGHTER."

A willful killing without deliberation and not with malice aforethought is "manslaughter."

5. HOMICIDE (§ 42)—PROVOCATION—SUFFICIENCY.

A provocation is adequate so as to reduce the offense from murder to manslaughter whenever it is calculated to excite the passion beyond control, and is such as would, in the mind of the average just and reasonable man, stir up resentment likely to cause violence endangering life, or such as would naturally tend to disturb and obscure the reason, and lead to action from passion rather than judgment, or to create anger, rage, sudden resentment, or terror, rendering the mind incapable of reflection.

6. HOMICIDE (§ 341)—INSTRUCTIONS—MANSLAUGHTER.

Where it appeared that defendant, in company with deceased, his brother, was on his way home from a dance, and that, upon a sudden affray between a relative and another, both defendant and deceased hurried back to the scene; that deceased compelled such other party to let his kinsman up; that trouble instantly arose between defendant and decedent, in which deceased as the aggressor took hold of defendant, shook him, cursing all the time, and cutting his clothing and hand with a knife, whereupon defendant shot him—failure to instruct on manslaughter in the fourth degree was reversible error.

Appeal from Circuit Court, Ozark County; John T. Moore, Judge.

William H. Conley was convicted of murder in the second degree, and he appeals. Reversed and remanded for retrial.

From a conviction of defendant of murder in the second degree in the circuit court of Ozark county, he appeals. The jury fixed his punishment at ten years' imprisonment in the penitentiary. The information upon which the conviction was had becomes important because of the attack made thereon by defendant in his motion in arrest of judgment. The defendant is neither represented in this court by any brief, nor did learned counsel who represented him below appear in oral argument in his behalf. We are left, as best we may, to eke out in the light of the motion for a new trial and the motion in arrest of judgment whatever errors, if any, we may be able to dig out of the record.

By reason of the attack made upon the information it becomes necessary to examine it. Omitting caption and formal parts (touching which there is no controversy), this information is as follows: "Geo. W. Boone, prosecuting attorney within and for the county of Ozark and state of Missouri, informs the court that William H. Conley on or about the 26th day of December, A. D. 1912, at the said county of Ozark and state of Missouri, did then and there in and upon one Ed Conley then and there, being feloniously, willfully, premeditatedly and of his malice aforethought, did make an assault, and with a dangerous and deadly weapon, to wit, a revolving pistol, then and there loaded with gunpowder and leaden ball, which he, the said William H. Conley, in both his hands then and there had and held, at and against him, the said Ed Conley, then and there feloniously on purpose and of his malice aforethought, willfully, premeditatedly and of his malice aforethought, did shoot off and discharge, and with the revolving pistol aforesaid, and the leaden ball aforesaid, then and there feloniously, on purpose and of his malice aforethought, willfully and premeditatedly, did shoot and strike him, the said Ed Conley in and upon the face and head of him, the said Ed Conley, giving to him the said Ed Conley, then and there with the dangerous and deadly weapon, to wit, the revolving pistol aforesaid, and the leaden ball aforesaid, in and upon the face and head of him the said Ed Conley one mortal wound, of which mortal wound the said Ed Conley from the 26th day of December, 1912, until the 8th day of January, 1913, in the county aforesaid, did languish, and languishing did live, on which said 8th day of January, 1913, in the county aforesaid, of the mortal wound aforesaid, died; and the prosecuting attorney aforesaid upon his oath aforesaid, does say, that the said William Conley, him the said Ed Conley, in the manner and by the means aforesaid, feloniously, willfully, premeditatedly and of his malice aforethought did kill and murder, contrary to the statute in such cases made and provided, and against the peace and dignity of the state."

It is urged in at least three assignments of error, in the motion for a new trial, that the court did not properly declare the law; that it refused proper instructions; and, specifically, that it erred in failing to instruct the jury on manslaughter in the fourth degree. This point is properly preserved in the record, and, since it is the only very serious point in the case, we would as well now give the testimony upon which this request of defendant was bottomed.

One Lum Bell, testifying for the state, among other things pertinent to the question of whether or not an instruction for manslaughter in the fourth degree should have been given, said: "Q. Tell the jury what Ed and Bill were doing. A. Well, they (Owen Driscoll and Aleck Hicks) had a little fight there at the house, and we was outside the yard fence by a little fire we had built, and Ed and Bill had hold of each other and jerking each other just like they was trying to make each other behave and go home, and just then the pistol popped and Ed fell. They were cursing, but it didn't seem like they was cursing each other, but each was cursing the men that was fighting. They seemed to be trying to quiet each other. Q. They didn't seem to be mad at each other? A. No, sir."

Sol Moffis, testifying for the state upon the question here, said: "Q. I will ask you if you didn't see Ed make a grab or a lick at Bill? A. No, sir; he just took him that way (indicating) and kinda shook him and said he was a fighting s____ of a b____. Q. They talked there something like a half a minute? A. It might have been a half a minute; I don't think it was over that. Q. And then the pistol fired? A. Yes, sir. * * * Q. How many minutes after you seen Ed take hold of Bill until the pistol fired: A. He says: `Bill Conley, I am a fighting s____ of a b____,' and he about got the words out when the pistol fired."

Jim Stephens, a witness in behalf of defendant, among other things, said: "* * * He turned and kinda threw himself toward Bill, and they kinda catched hold of each other, and the crowd kinda got between me and them, and then they hollowed, `Turn me loose and don't hold me—' (interrupting) Q. Which one was that? A. It was either Ed or Bill one, I couldn't tell which, and about that time the pistol fired and Ed fell."

The above excerpts are all that any witness (except defendant himself, to whose testimony reference will be hereafter made), either for the state, or for the defendant, said which is pertinent upon the contention that an instruction for manslaughter should have been given. It may be with fairness stated that in all of the testimony of the several witnesses, both for the state and the defendant, there is nothing else which even tends to show that the killing was not either murder in the second degree, or absolutely justifiable on the ground of self-defense.

The defendant, testifying for himself, which he did at great length, undertook to explain fully all of the facts and circumstances immediately preceding and occurring at the time of his shooting deceased. His testimony touching the facts which bear upon the necessity vel non for an instruction on manslaughter, and upon which such instruction must be bottomed, if it were required to be given, was as follows: "* * * Ed came back around and took Stephens and jerked him around and swore he was the `fightingest s____ of a b____ that ever seen that place,' and he turned Stephens loose and grabbed me, and when he grabbed me it wasn't until just a little bit until I felt something cutting and tearing my coat, and I says: `What are you doing, Ed? My gracious! Don't do that.' I thought it was a knife, and he gave me another blow, and I told him still, to quit, and I began trying to get away from him. He had me by the breast of the coat, and I finally slapped the knife out of his hand, and he cut me right there on the left hand, and when I slapped the knife out of his...