State v. Cook

• Decision Date: 31 October 1884
• Citation: 84 Mo. 40
• Parties: THE STATE v. COOK, Appellant.
• Court: Missouri Supreme Court

84 Mo. 40

THE STATE

v.COOK, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Washington Circuit Court.--HON. JNO. L. THOMAS, Judge.

AFFIRMED.

No brief for appellant.

D. H. McIntyre, Attorney General, for respondent.

(1) The second instruction correctly defines murder in the first degree to be a wilful, deliberate killing done with premeditation and malice aforethought. (2) The third instruction has often been sanctioned by this court. State v. Talbott, 73 Mo. 346, and cases cited. The technical terms used in the definition of murder in the first degree are defined as usual, except deliberately, which is defined as in the State v. Wieners, 66 Mo. 13. Even if this definition were wrong the error would be immaterial as there was no provocation whatever in the case. (3) Instruction numbered three with regard to the defence of insanity follows the uniform decisions of this court. State v. Redemeier, 71 Mo. 173; State v. Erb, 74 Mo. 199, and cases cited. And it correctly told the jury that drunkenness was no excuse for the crime. State v. Dearing, 65 Mo. 533; State v. Edwards, 71 Mo. 323. (4) The fourth instruction properly told the jury to consider defendant's interest in the suit in weighing his testimony. State v. McGinnis, 76 Mo. 326. (5) The fifth instruction is the usual one upon the subject of reasonable doubt, and the sixth is merely formal. The court properly confined the instructions to murder in the first degree and the defence of insanity. If the defendant was sane there could be no doubt as to the crime committed. (6) The court heard evidence upon the point that the juror, John Forester, had expressed an opinion adverse to defendant, which he failed to disclose on his voir dire, and found that the charge of prejudice against him was unfounded. This court will not disturb that finding. Where the impartiality of a jury is impeached, it is due to the juror and to the interest of public justice that he be confronted with the charge, and unless the evidence is plain against the juror the verdict should be allowed to stand. Thompson and Merriam on Juries, § 304, p. 346. State v. Kingsbury, 58 Me. 238. (7) The evidence must clearly preponderate against the juror. A mere doubt of his impartiality is not enough. Davison v. People, 90 Ill. 221; State v. Dumphey, 4 Minn. 438; State v. Ayer, 23 N. H. 301.

MARTIN, C.

The defendant was indicted and convicted of murder in the first degree for killing a woman named Emma Shore. It was developed in the evidence that the defendant, a negro man, raised in Washington county and reputed to be of a peaceable disposition, although frequently seen under the influence of liquor, had been acquainted for some considerable time with the deceased, a young girl of his own race, to whom his attentions had been latterly paid in the character of a suitor. Early in the afternoon of July 5, 1883, the defendant was seen by witness, Mahala Clark, who learned from him that he had just come from an interview with the deceased who at that time was residing at Mr. Wallace's, and that there had been a long talk between them, which had terminated in his disappointment and discomfiture. After detailing the result of his interview he added: “If that girl don't do me any good, she shall never do any other man any good.” A short time after this conversation, possibly a short time before it, the defendant called at the residence of one Nathan Ennis, whose wife, Lucy, seems to have been an intimate friend of the deceased, and asked of Lucy Ennis whether or not the deceased would be there that night, remarking at the same time that he intended to come up. In answer to his inquiry, Lucy Ennis informed him that she did not know of her intention to be there. The defendant then left.

A short time after dark he returned and found her there. The evidence fails to disclose anything particular as happening between them. He stayed but a few moments, and then left, carrying away under his arm the hat of the deceased, seemingly in a playful manner, requesting Lucy Ennis not to inform the deceased of the fact. As soon as he left, the deceased along with Lucy Ennis, went over to the residence of witness, Margaret Johnson, which was within hearing distance from the house of Nathan Ennis. The defendant on leaving repaired to witness, Hulsey, from whom he borrowed a unloaded pistol, remarking that he expected to go with the hack that night to Mineral Point, and might need a pistol. After obtaining this pistol the deceased is next seen by witness, Jennings, from whom he borrowed a nickel, stating at the time that he wanted to buy beer with it. After borrowing the nickel he exhibited the pistol to Jennings, uttering at the time these words: “Jim, dirt to-night--dirt to-night.” Failing to obtain cartridges at a drug store near by, he visited the store of Mr. Murphy, and upon repeating his contemplated trip with the hack to Mineral Point, he succeeded in buying some. He then made his way back to the residence of Nathan Ennis, where he had left the deceased. On reentering it he was told by Ennis that he supposed the deceased had gone home. This statement was made in answer to the defendant's inquiry for her. He then left the hat which he had brought back and started off in the direction of the deceased's home at Mr. Wallace's. Very soon after he left loud talking was heard at the residence of Margaret Johnson, whither the deceased with Lucy Ennis had gone. Peter Casey and John Whitley went over there from the Ennis house, attracted by the loud talking. Casey entered the house and Whitley remained at the door.

The defendant was there seen following the deceased from room to room with a pistol protruding from his hip pocket, stating that he wanted to speak to her, that he wanted her to speak one word to him; that he wanted her to come to the door to speak one word; that he wanted her to bid him good-bye. This she told him she would not do until he laid his pistol aside, a weapon she never had seen him carry before. He answered that he could not do as she requested, and that she would be sorry for her conduct. During the interview he at one time pulled out the pistol, but returned it to his pocket upon Lucy Ennis' running between them. He had been ordered out by Margaret Johnson. Finally Lucy Ennis, remarking that she heard her child crying, started back towards her residence, the deceased and Peter Casey accompanying her. The defendant declared that he would go home with the deceased, and started in company with them. As the party was passing down the declivity which led from the house they were leaving, the defendant stumbled and came near falling. After recovering himself he placed his hand on the deceased's shoulder, and asked her to excuse him for what he had said and done at the house. To this she answered “no,” assigning as a reason that she had already excused him too many times. He insisted again that she ought to excuse him, but she made no further reply.

On passing a branch, which extends through the hollow they were traversing, Lucy Ennis was a few steps in front and the defendant, the deceased, and Peter Casey were coming on abreast. After crossing the branch the defendant fell back a step or two behind the deceased and Peter Casey, and called out to Lucy Ennis asking where she was. Immediately after her answer indicating where she was, the defendant discharged his pistol at the head of the deceased, and she fell, declaring in her last words that the defendant had shot her. The defendant disappeared in the darkness and was heard running swiftly up the hollow. Another shot was heard a few minutes afterwards in the direction he had run; and according to witness, Magaret Harris, the defendant afterwards appeared at her house asking to be admitted and fired two shots on her porch, and left upon her refusal to admit him. The bullet entered the back of the deceased's head, passed inward and downward to the first bone of the spinal column, producing paralysis of the body, in which condition she lingered till her death on the 25th of August following.

At about 9 o'clock the next morning the defendant was discovered at the Teasdale farm, about half a mile from Potosi, lying among some bushes in a fence corner. Upon being informed that he had shot Emma Shore he said that he did not know it, adding that he had shot himself too. There was a knot on his forehead and some wounds and blood on his face; but the evidence fails to indicate any injuries to his person of a serious nature. He asked for a drink of water, and soon afterwards disappeared. On the 8th of July, the day of his arrest, he was seen by a witness at the farm of a Mr. Dawson, about three miles from Potosi, lying in a corn crib, between some hay and a log of the crib. He answered to his name and upon request of the witness placed his pistol within reach where it was taken. He did not seem to know where he was. The witness covered him with a piece of carpet and left him. A witness, John Flynn, testified that the defendant called at his residence early in the evening of the homicide while he was at supper, and wanted witness to buy him a suit of clothes, which he refused to do. The witness thought that defendant acted strangely but was satisfied that he was not at the time intoxicated. There was evidence tending to prove that defendant was intoxicated after the homicide when he called at a livery stable between 10 and 11 o'clock in the evening.

The defence consisted of the plea of insanity. One physician testified that in his opinion the defendant was insane, basing his conclusion chiefly upon the supposed attempt of the defendant to take his own life. Two physicians concurred in the opinion that he was perfectly sane. One of them attended him after his arrest, and the other one had known him from childhood. The defendant testified from the witness stand, and informed the jury that he had no recollection of any of the facts appearing in...