State v. Craft

• Decision Date: 12 November 1901
• Citation: 65 S.W. 280,164 Mo. 631
• Parties: STATE v. CRAFT.
• Court: Missouri Supreme Court

65 S.W. 280

164 Mo. 631

STATE v. CRAFT.

Supreme Court of Missouri, Division No. 2.

November 12, 1901.

MURDER — INDICTMENT — COURT — TRIAL — CONTINUANCE — MOTION TO QUASH — JURY — EVIDENCE — ESCAPING CONVICT — REARREST — CHARGE.

1. Under Rev. St. 1899, § 2535, providing that no indictment shall be deemed invalid for any defect which does not prejudice the substantial rights of the defendant on the merits, an indictment is not fatally defective because it does not state on its face the particular court in which it is found.

2. Where the record shows the court in which an indictment is found, it is not absolutely necessary to state the name of the court in the caption.

3. Where, in an application for continuance of a criminal case set for trial four months after indictment, no grounds are given other than that defendant's attorney has not had time to prepare for trial, an order denying the application should be sustained.

4. Where no evidence is offered in support of a motion to quash the panel of jurors on the ground that they were not taken from the body of the county, and that of 55 jurors summoned as a special venire 43 were from the town in which deceased lived, the order denying such motion cannot be held erroneous.

5. A juror in a criminal case is not disqualified simply because he has read newspaper accounts of the matter, or heard it spoken of by other persons, if he has formed no opinion as to defendant's guilt.

6. A conviction of murder should not be set aside because during the selection of the jury, and after court had adjourned, on one occasion an officer put handcuffs on defendant when removing him from the court room.

7. Where defendant, an escaping convict, killed deceased while he and others were attempting to rearrest defendant, evidence of such facts is admissible, though he is not accused of being a convict in the indictment.

8. Defendant, just after his escape from the state prison, stole a loaded Winchester rifle to prevent rearrest, and on being approached for that purpose by a prison keeper and those he had called to his assistance shot and killed one of such assistants. Held, that such killing was either murder in the first degree or justifiable on the ground of self-defense.

9. Under Rev. St. 1899, § 2067, making it a felony for any one lawfully confined in the penitentiary to escape therefrom, it is not necessary that one so escaping should be notified that his rearrest is being attempted.

10. Where there was neither lawful provocation nor lawful excuse for the killing of deceased by defendant, a failure by the trial court to properly define lawful provocation in its charge, or to improperly define it, is not reversible error.

Appeal from circuit court, Cole county; Jas. E. Hazell, Judge.

Joshua L. Craft was convicted of murder in the first degree, and appeals. Affirmed.

F. E. Luckett and Robert W. Morrow, for appellant. E. C. Crow, Atty. Gen., and Sam B. Jeffries, Asst. Atty. Gen., for the State.

BURGESS, J.

The defendant, Craft, an escaped convict from the state penitentiary, where he was undergoing a sentence for felony, was convicted in the circuit court of Cole county on the 9th day of December, 1900, of murder in the first degree, and his punishment fixed at death, for having shot and killed one Henry Spieker with a Winchester rifle. After unsuccessful motions for a new trial and in arrest, defendant appeals.

On the morning of the 9th day of December, 1899, defendant escaped from the penitentiary. In descending the wall around the buildings he sustained an injury to his foot of such an extent as to render walking exceedingly painful and difficult. Finding a horse and buggy unattended near by, he got in the buggy and drove off. After reaching the outskirts of the city, he abandoned the horse and buggy, and continued on foot, and, after walking a short distance, reached the home of John Heidker, which he entered, and, going upstairs, he took possession of a repeating Winchester rifle, which had in its chamber from five to seven loaded shells. He told Mrs. Heidker that he wanted the gun to kill a chicken hawk. He then walked down the road, and had gone but a short distance, when he met William Schepker driving a horse and buggy towards Jefferson City. He stopped Schepker, and ordered him to turn the horse around, and drive him towards home. Schepker protested, but finally consented. When he had driven about one mile, the defendant left the buggy and Schepker returned towards town. The point on the road at which defendant and Schepker parted was only a distance of a few yards from the driveway leading towards the residence of the Spieker family. Craft kept to the road, using the gun as a crutch to aid him in walking. After proceeding about a quarter of a mile, he came to the home of William Heimrich. He there went into the barn near the house to get a horse. He entered the barn, found the horse, led him out, and proceeded to mount, when its owner, William Heimrich, came out, and took hold of the horse's bridle, and asked defendant what he intended doing with the animal. Some slight altercation ensued, ending with defendant's deciding to give up the horse. Just at this moment another man came out of the house, and spoke in German to Heimrich, and immediately returned to the house. Defendant, as he states, fearing that the man's purpose in returning to the house was to procure a gun, was anxious to get away. He told Heimrich to let loose of the horse's bridle, and at the same time raised his gun as if to strike him. Being liberated, defendant rode out to the road. In order to continue his course, it was necessary that he pass by the Heimrich residence, and, fearing the man who had a few minutes ago gone into the house with the evident intention of procuring a gun, and in order to avoid any trouble, defendant turned the horse in the other direction and returned towards Jefferson City. Arriving at the driveway leading towards the Spieker homestead, he turned into it, hoping to reach and conceal himself in some timber which he saw further on. William Heimrich, it seems, had been following him, and shouted to the Spieker boys, who were shucking corn near the house, to stop the man with the horse. The Spieker boys, Henry, Rudolph, and Hermann, ran into the house, and provided themselves with guns, and, pursuing the defendant, called upon him to give up the horse. Defendant turned the horse loose, and walked to a creek near by, on the opposite side of which was some timber. He stopped by the creek and got a drink. He then disappeared in the timber after some wordy altercation with the Spieker boys. Heimrich came up and recovered his horse, and at this juncture Hermann Kolkmeyer, a prison guard, arrived upon the scene, and informed the boys that the man they had been following was an escaped convict, and ordered them to assist in capturing him. He told them that the gun which the convict carried was not loaded, and that there was a reward of $25 for his capture. Kolkmeyer stationed Heimrich on the nearer side of the creek to watch, while he, together with Henry and Rudolph Spieker, searched for the defendant on the other side. Hermann did not accompany them. Leaving his gun with Heimrich, he returned home, taking the horse with him. Rudolph was about 50 feet beyond the deceased at the time the fatal shot was fired. He stated in his evidence that before he heard the shot he saw the deceased walking along by a worm fence some distance ahead, and immediately before he shot he heard the deceased say, "Throw up your hands, otherwise I will shoot." He saw smoke issue from a corner of the fence, but did not see the person who fired the shot. Defendant then immediately shot deceased, from the effects of which he died on the following day. Defendant, in his own behalf, testified that at the time he shot deceased he was being pursued by him and others with guns, one of which was presented at him by deceased, and that he believed his life was in danger, and shot in self-defense, and without any intention of killing deceased.

On the part of the state the court, over the objection and exception of defendant, instructed the jury as follows: "(1) The court instructs the jury that if they find from the evidence beyond a reasonable doubt that the defendant Joshua L. Craft, at Cole county, Mo., on or about the 9th day of December, 1899, did feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought make an assault upon Henry Spieker with a certain rifle gun, and then and there with said rifle gun feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought, did kill the said Henry Spieker by shooting him upon the left hip and body, thereby inflicting upon him a mortal wound, of which he, the said Henry Spieker, on the 10th day of December, 1899, died at said Cole county, Mo., and that said Spieker was thus killed by the shooting aforesaid, as charged in the indictment, then you will find the defendant guilty of murder in the first degree, and will so state in your verdict. (2) The court instructs the jury that, as used in the indictment and instructions, `willfully,' means intentionally, not accidentally. `Feloniously' means wrongfully, and against the admonition of the law. `Premeditatedly' means thought of beforehand, or that the act was thought of beforehand, for any length of time, however short. `Malice' means a wrongful act done intentionally, without just cause or lawful excuse. It does not mean mere spite, hatred, or ill will, but signifies a disposition that shows a heart regardless of social duty, and fatally bent on mischief; and `malice aforethought' means that the act was done with malice and premeditation as here defined. `Malice,' as here used, may be presumed from the intentional use of a deadly weapon in a manner likely to produce death. `Deliberately' means done in a cool state of the blood, not in a sudden passion...