State v. Darling

• Decision Date: 20 November 1906
• Citation: 199 Mo. 168,97 S.W. 592
• Parties: STATE v. DARLING.
• Court: Missouri Supreme Court

97 S.W. 592

199 Mo. 168

STATE v. DARLING.

Supreme Court of Missouri, Division No. 2.

November 20, 1906.

1. JURY — COMPETENCY — OPINION—NEWSPAPER REPORTS.

Under Rev. St. 1899, § 2616, providing that "it shall be a good cause of challenge to a juror that he has formed or delivered an opinion on the issue * * * but if it appears that such opinion be founded only on rumor and newspaper reports and not such as to prejudice or bias the mind of the juror he may be sworn," opinions based solely on newspaper reports do not disqualify a juror, although such reports purported to give the evidence taken at the coroner's inquest and at the preliminary hearing; there being no evidence that the published reports contained an accurate statement of the evidence, except the mere statement by the jurors that they thought they did.

2. HOMICIDE—MANSLAUGHTER IN FOURTH DEGREE.

Manslaughter in the fourth degree is the intentional killing of a human being in a heat of passion or reasonable provocation, without malice or premeditation, and under circumstances which will not render the homicide justifiable or excusable.

3. SAME.

In a prosecution for murder, two of defendant's witnesses, who were with him when the homicide occurred, testified that in going to a certain place they passed through the field where deceased was at work; that they did not know he was there, and when they reached the point where he was plowing he spoke to witnesses as usual, but to defendant he applied opprobrious and insulting epithets, and said he ought to burst his head with the wrench which he then took from his pocket, and that he immediately started toward defendant, whereupon defendant reached down and was in the act of picking up a rock when deceased struck him on the arm with a wrench; and that defendant then struck deceased with the rock, and they engaged in a close combat, during which defendant struck deceased several blows with the rock. Held, that defendant was entitled to an instruction on manslaughter in the fourth degree.

4. CRIMINAL LAW — INSTRUCTIONS — PUNISHMENT —MINORS.

Rev. St. 1899, § 7759, providing that all boys convicted of crime, the punishment for which is death or imprisonment in the penitentiary for not less than 10 years, "may be imprisoned in penitentiary or committed to the state reform school for boys for a term not less than five years," is not found in the statute in regard to crimes and punishments, but under a separate and distinct chapter entitled "Reform School for Boys." Held that, on the prosecution of a boy under 18 years of age, an instruction that, if the jury found defendant guilty, they should assess his punishment at imprisonment in the penitentiary for a term of years not less than 10, was sufficient, and the court was not required to further instruct under the section referred to.

5. SAME—EVIDENCE—RELEVANCY.

In a prosecution for a crime committed on the premises of a certain person during his absence, evidence tending to show that a person passing along the road near the house of defendants would be in sight of a person at that house for a distance of about a quarter of a mile was introduced as tending to show that defendants, who were at home on that day, could have seen such person as he passed the road on his way to town, and that they knew he was not at home. Held, that such evidence was not admissible in the absence of some evidence or circumstance tending to show one or more of the three defendants either saw or were in a position to see such person, or that he saw some of them as he passed their house.

6. SAME — EVIDENCE — TESTIMONY OF CODEFENDANTS —SHOWING AS TO CONSPIRACY.

In a prosecution of several defendants for murder, evidence tending to show a conspiracy between defendants to assault deceased held sufficient to justify the court in permitting evidence upon that theory to go to the jury.

7. SAME.

To justify the court in permitting evidence to go to the jury on the theory that a conspiracy existed between codefendants, it is not necessary that the conspiracy be shown by direct and positive testimony, but it may be shown by the facts and circumstances, the conduct of the parties, and their joint action before and leading up to its execution.

8. SAME — INSTRUCTIONS — CONSPIRACY BETWEEN CODEFENDANTS.

On the trial of one of several joint defendants, where evidence is permitted to go to the jury on the theory that a conspiracy existed between the indictees, it should be submitted to the jury, by proper instructions, whether or not there did exist a conspiracy, and unless the jury believe that such a conspiracy did exist all statements made by either or both of the other defendants not in defendant's presence, tending to show a mutual understanding between them, should be excluded in passing on the guilt or innocence of defendant.

9. SAME — EVIDENCE — DECLARATIONS OF ACCOMPLICE.

On the trial of one of defendants jointly indicted with others for murder, evidence as to threats against deceased, made by one of defendant's accomplices during a conversation between him and a third person, which conversation was had at the request of defendant, was admissible.

10. SAME.

In a prosecution for murder, where it is shown that a conspiracy existed between defendants, evidence of threats by one defendant against the deceased before the conspiracy was formed is inadmissible as against his codefendant.

11. HOMICIDE — APPEAL — HARMLESS ERROR— INSTRUCTIONS.

Where defendant was only convicted of murder in the second degree, he could not complain of an instruction based upon murder in the first degree.

12. SAME—INSTRUCTIONS.

In a prosecution for murder, an instruction that, if from the evidence the jury doubted as to whether defendant or deceased was the aggressor in the difficulty, then, in determining who was the aggressor, they might take into consideration any threat or threats that were made by deceased against defendant, and which threats were not communicated to said defendant, for the purpose of explaining the conduct and demeanor of deceased at the time of said difficulty, was substantially correct.

Appeal from Circuit Court, Cooper County; Wm. H. Martin, Judge.

Ernest Darling was convicted of the crime of murder in the second degree, and appeals. Reversed.

W. V. Draffen and C. D. Corum, for appellant. The Attorney General and N. T. Gentry, for the State.

BURGESS, P. J.

The defendant, his brother, Silas Darling, and Dorvill Burress were jointly charged in an information filed by the prosecuting attorney of Cooper county with murder in the second degree, in killing with a dangerous and deadly weapon, to wit, a large stone, one Samuel Jeffress, at Cooper county, on the 13th day of March, 1905. The cause was set for trial on the 10th day of July, 1905, when, by permission of the court, the state amended the information so as to charge said Darlings and Burress with murder in the first degree. Thereupon Burress pleaded guilty to manslaughter under said information, and was sentenced to two years' imprisonment in the penitentiary, and was paroled by the court on the condition that he would not violate the law. The defendants Ernest and Silas Darling then requested a severance, and that the state be required to elect as to which one of them it would try first. The state then elected to try Ernest Darling first, and the trial was proceeded with, resulting in a verdict of guilty of murder in the second degree, and the fixing of defendant's punishment at 20 years' imprisonment in the penitentiary. After unsuccessful motions for a new trial and in arrest, defendant appeals.

The facts are substantially as follows: The defendant and Silas Darling are brothers, and at the time of the homicide lived with their father on a farm in Cooper county, between Blackwater and the Saline county line. Dorvill Burress also lived with and worked for the father of the Darling boys. Prior to March 13, 1905, the deceased lived with his widowed mother in the village of Nelson, which is a few miles from Blackwater, but on that day went to work for one Charles Carroll as a farm hand; the farm being situated in Cooper county. On the afternoon of the day preceding, being Sunday, Emmett Yeager visited at the Darling home and told the defendant that Sam Jeffress had gone to work for Charles Carroll as a farm hand. In a short while Dorvill Burress came in, and defendant said to him, "Dorvill, Sam Jeffress is going to work down here at Charlie Carroll's; and I will get the son of a bitch in the morning." Dorvill replied that that was all right, and that he would like to slip along behind and see it done. Presently Silas Darling came in the room, and defendant repeated his remarks to Silas, at the same time changing a small pair of iron knucks from his pocket to Silas' pocket, and getting a large pair of iron knucks from Silas' pocket and putting same in his (defendant's) pocket. From the Darling home defendant and Emmett Yeager went to visit Miss Mollie Finlay, who lived in the neighborhood. While making this call, defendant asked Miss Finlay if she knew Sam Jeffress, to which she replied that she did, and that she thought he was a pretty good looking boy. Defendant said, "Yes; he is a pretty good looking boy, but he probably won't look as well to-morrow as he does to-day." While returning from the Finlay home defendant told Emmett Yeager, "I told Sam while he was cussing me there in Blackwater that I would get my revenge, and, by God, I will get it, too." That afternoon Silas Darling said to Dorvill Burress that he thought he, Silas, ought to go down there with defendant the next day, as Sam might make a knife play. After dinner on Monday, March 13th, Mr. Carroll took the deceased to a field and started him to work with a pair of mules and a tongueless cultivator. About the same time, over at the Darling farm, Dorvill Burress asked Silas to come and go with him to work, to which Silas replied that he had promised d...