State v. Creighton

• Decision Date: 29 August 1932
• Citation: 52 S.W.2d 556,330 Mo. 1176
• Parties: The State v. James M. Creighton, alias W. H. Geers, alias Jimmie Jones, Appellant
• Court: Missouri Supreme Court

52 S.W.2d 556

330 Mo. 1176

The State v. James M. Creighton, alias W. H. Geers, alias Jimmie Jones, Appellant

Supreme Court of Missouri

August 29, 1932

Appeal from Jasper Circuit Court; Hon. R. H. Davis, Judge.

Reversed and remanded.

T C. Tadlock and Frederick Apt for appellant.

In this case there was not a scintilla of evidence on which to base a verdict of murder in the first degree. Defendant a minute before the fatal shooting did not know there was such a person as the deceased; there was no preconceived intention or purpose which had been dwelt upon and fixed in defendant's mind prior to the shooting for any length of time. It is impossible that the acts should precede the intention or be simultaneous with it; if there be any intention at all the will must act before the muscles can move; if therefore the fatal shooting of deceased by defendant was the spontaneous result of a suddenly formed intention to kill, the element of deliberation was wanting and the offense was not murder in the first degree. State v. Hudson, 59 Mo. 135; State v. Jackel, 44 Mo 234; State v. Saunders, 53 Mo. 234; State v Speyer, 207 Mo. 540, 106 S.W. 505, 14 L. R. A. (N. S.) 836. In the case of the State v. Weiners, 66 Mo. 24 the court used this language. "Take the case of A and B, who had been on friendly terms, but they have an altercation in which A calls B a liar, and with a pistol or other deadly weapon B instantly, in a passion engendered by the insult kills him. This, at common law, was murder, but, lacking the element of deliberation, it is, under our statutes, murder in the second degree." State v. Liolios, 225 S.W. 947. Where there is a wilful killing with malice aforethought, and not with deliberation or in a cool state of the blood, the offense is murder in the second degree. State v. Curtis, 70 Mo. 574; State v. Bulling, 165 Mo. 221, 15 S.W. 371; State v. McKenzie, 177 Mo. 711, 76 S.W. 1015. The defendant in his written statement, stated that the deceased by his acts and conduct made him mad and he fired the shots. Kelley's Criminal Law (4 Ed.) secs. 479, 450; State v. Musick, 101 Mo. 260, 14 S.W. 212. In the case of the State v. Clough, Westhues, Commissioner, speaking for the court states, that "Voluntary manslaughter has been defined as the intentional killing of a human being in the heat of passion on a reasonable provocation without malice and without premeditation, and under circumstances which will not render the killing justifiable or excusable homicide. Citing in support thereof State v. Sebastian, 215 Mo. 80, 114 S.W. 528; State v. Lewis, 248 Mo. Sup. 498, 154 S.W. 716. In the case at bar, the defendant was suddenly accosted by a strange man, who suddenly grabbed hold of him by the lapel of his coat, and asked him if he was looking for trouble and striking defendant in the face, and at the time calling him a "damn son-of-bitch." The writer of this opinion submits that such conduct would ordinarily excite the passion beyond control. State v. Johnson, 6 S.W.2d 898; State v. Ballance, 207 Mo. 617, 106 S.W. 60; State v. Gartrell, 171 Mo. 519, 71 S.W. 1045; State v. Connelly, 255 Mo. 185, 164 S.W. 197; State v. Burnell, 298 Mo. 680, 255 S.W. 709; State v. Borders, 190 S.W. 180; State v. Stewart, 278 Mo. 188; State v. Clough, 38 S.W.2d 36; State v. Perno, 23 S.W.2d 89; State v. Eason, 18 S.W.2d 71; State v. Baublits, 27 S.W.2d 16. And, after the making and filing of the application and affidavits as required by said section, the presiding judge had no power or authority to act in the cause, except to transfer the same to the other division of court. State v. Shipman, 93 Mo. 147; State v. Witherspoon, 133 S.W. 323; 16 C. J. 203; State v. Mitts, 29 S.W.2d 125; State v. Bryant, 24 S.W.2d 1008. The court committed error in refusing to transfer said case and in holding a preliminary investigation to determine whether or not one of the supporting witnesses could withdraw his affidavit from the plaintiff's said application for a transfer. 4 Standard Ency. of Procedure, 977; Dodd v. State, 115 P. 632. Said supplemental petition and affidavits being filed under said Section 3648, R. S. 1929: "It was said in the case of the State v. Meyers, 14 S.W.2d 448. Sections 3991-3992 and 3994, now being Sections 3648-3649 and 3651, of the Revised Statutes for 1929, do not provide for a change of venue or a change in the place of trial, but merely for the substitution of another judge in the place of the judge who shall be deemed incompetent to hear a trial in criminal case; and while applications like the one now under consideration are commonly designated as applications for change of venue, such designation is a misnomer. State v. Mitts, 29 S.W.2d 125. The court in a collateral proceeding on defendant's first application for a change of venue, as is shown by the record in this case, declared said application, no application, and refused the same. Then in that event the case stood as if no application had been filed. And, thereafter, by leave of court, defendant filed his petition and application for a change of venue, which the court without assigning any reason for so doing, overruled the same; this was error. State v. Maguier, 69 Mo. 197; State v. Myers, 14 S.W.2d 447. On being forced to trial on the said 22nd day of June, 1931, defendant was deprived of his constitutional right to be represented by counsel on the trial of his case. State v. Mackensie, 228 Mo. 385, 128 S.W. 948; State v. Bell, 212 Mo. 111, 111 S.W. 240. The refusal to grant the continuance to the party showing good and sufficient cause for it, has uniformly been considered by the court as sufficient ground for reversal. State v. Wade, 307 Mo. 291, 270 S.W. 298; State v. Lewis, 74 Mo. 222; State v. Maddox, 117 Mo. 67, 23 S.W. 771. A continuance should be allowed when it is shown that counsel have not had sufficient time to prepare a defense, which he believes there is in the case. State v. Dreschamps, 41 La. Ann. 1051, 7 So. 133; Price v. People, 131 Ill. 223, 23 N.E. 639; State v. Sullivan, 43 Kan. 563, 23 P. 645. And the Supreme Court of Georgia has characterized the refusal of the trial court to continue a cause under such circumstances as violative of the constitutional right of the defendant, to be heard by counsel. Blackman v. State, 76 Ga. 288; State v. Jones, 12 Mo.App. 93. Was that not true in this case when defendant's counsel asked just for at least sufficient time in which to get ready and properly prepare for trial, leaving it to the discretion and conscience of the court to give the length of time he deemed sufficient. The action of the court however, is subject to revision by the appellate court, and the cause will be reversed when a continuance has been improperly refused. 117 Mo. Sup. 667, 9 S.W. 636; 23 S.W. 771, 1 S.W. 827; State v. Anderson, 96 Mo. 241; State v. Dawson, 90 Mo. 149; State v. Walker, 69 Mo. 474; Williams v. State, 39 S.W.2d 295; State v. Irvin et al., 22 S.W.2d 772; State v. Buxton, 22 S.W.2d 635. The court should have given an instruction to the jury on manslaughter as requested by the defendant, the evidence clearly showing that the defendant's passion was suddenly aroused by the acts of the deceased in assaulting him and by the language used by deceased to defendant, if not done in self-defense as testified to by defendant; it certainly amounted to lawful and legal provocation sufficient to reduce the homicide from murder to manslaughter, because the defendant did not act with malice aforethought. State v. Speyer, 207 Mo. 540; State v. O'Hara, 92 Mo. 64. Counsel for defendant objected to Instruction 3, given by the court of his own motion, at the time it was given and again in the motion for a new trial called the attention of the court to the fact that said instruction was in the nature of a criticism and restriction upon defendant's counsel in their argument to the jury, thereby depriving the defendant the right to be heard by counsel untrammeled in their arguments. And, there was no evidence upon which to base such an instruction, and nothing occurred during the trial of the case to warrant the court in telling the jury that they should disregard the arguments of counsel and the evidence in the case, and render such verdict as in their conscience, reason and judgment seem to be just and proper, thereby restricting the duty of the jury to be governed solely by the law and evidence in their deliberation. State v. Owens, 79 Mo. 619; State v. Grayer, 89 Mo. 600, 1 S.W. 365, 4 S.W. 14; State v. Edelen, 288 Mo. 160, 231 S.W. 585; State v. Bartlow, 90 Mo. 608. The court by Instruction 4, told the jury that they should not consider any offer made during the progress of the trial, to prove any fact or facts by any witness or witnesses. Defendant claiming that this instruction is wholly misleading and would strongly tend to confuse the minds of the jury. It did not tell the jury that they should not consider any evidence that had been offered by the defendant and rejected by the court, but it included any and all offers rejected or not rejected. State v. Brown, 188 Mo. 451, 87 S.W. 519; State v. Sykes, 191 Mo. 62, 89 S.W. 851. The court committed reversible error in giving to the jury in this case Instruction 15, telling the jury in substance, that "words" and "epithets," do not constitute or justify an assault and if they believed from the evidence that the defendant shot the deceased because of some words or epithets uttered by the deceased to the defendant; that they could not acquit the defendant on that account; the defendant claimed that he shot the deceased in self-defense. This instruction impairing the defendant's right to have all the facts and circumstances fully considered by the jury as they might bear upon that defense, and as...