State v. Fairlamb

• Citation: 121 Mo. 137,25 S.W. 895
• Parties: STATE v. FAIRLAMB.
• Decision Date: 13 March 1894
• Court: Missouri Supreme Court

25 S.W. 895

121 Mo. 137

STATE v. FAIRLAMB.

Supreme Court of Missouri, Division No. 2.

March 13, 1894.

MURDER — DEGREES — INSTRUCTIONS — COMPETENCY OF JURORS — SEPARATION OF JURY.

1. Any kind of willful, deliberate, and premeditated homicide is murder in the first degree.

2. One who intentionally and unjustifiably, but without deliberation, kills another, is guilty

of murder in the second degree if the killing was not done in an attempt to commit a felony.

3. The word "deliberately," as used in an indictment for murder, means an intent to kill, executed by a person in furtherance of a formed design to accomplish an unlawful purpose.

4. An instruction on circumstantial evidence is not authorized if the crime is shown by direct testimony.

5. In passing upon the weight to be given defendant's own testimony, the jury should be instructed that they "may" (not "should") take into consideration his interest in the result.

6. On trial for murder in the first degree, the court is not bound to instruct for the second degree, if the evidence points only to guilt in the first.

7. Defendant's failure, on being called as a witness, to testify to a particular fact, should not be commented on in argument.

8. The fact that one is not a voter does not render him incompetent to serve as a juror.

9. The fact that one summoned as a juror in a homicide case, upon his examination touching his qualifications as a juror in a prior homicide case, showed himself to be incompetent to serve in that case, does not render him incompetent in the case at bar.

10. The fact that the jury in a homicide case were, at various times during the trial, in the main office of an hotel where persons were passing in and out, is not ground for reversal, if it is made affirmatively to appear that they were not spoken to about the case, and that it was not discussed or alluded to in their presence.

11. One who is acquainted with another's general reputation for truth in the neighborhood in which he (other) lives may testify as to such other's general character.

Appeal from circuit court, Polk county; Argus Cox, Judge.

W. W. Fairlamb was convicted of murder in the first degree, and appeals. Reversed.

T. G. Rechow and Upton & Skinker, for appellant. R. F. Walker, Atty. Gen., and Morton Jourdon, for the State.

BURGESS, J.

Defendant was convicted of murder of the first degree, in shooting with a shotgun, and killing, one George C. Wells. Deceased had won some money on a horse race in which defendant claimed to have an interest, and over this matter a controversy arose between them, in which the homicide occurred. Deceased had promised to meet defendant at an hotel in the city of Bolivar at night, to settle up the matter, where defendant waited for him until after 10 o'clock; and, he failing to appear, defendant went to his home, got a single-barreled repeating shotgun, and went out to the fair grounds near Bolivar, where the deceased and his wife and child were living in a horse stall, and two young men — one Harry Wells, his stepson, and Calvin Stiles — were occupying another stall adjoining thereto. The fair ground's gate is on the west side of the fair ground. The stall in which Wells was staying is 75 yards north of the gate, which is between the stalls and the city. Defendant, in going to the stall where Wells was, went by the gate. When defendant got near the stall, he called Wells up, who put on his clothes, and told defendant to go down to the gate. The fair grounds are inclosed by a tight board fence eight feet high. Defendant was on the outside, and Wells on the inside. The gate was locked. Wells and defendant went to the gate. Mrs. Wells, Harry Wells, and Stiles followed. Arriving at the gate, Harry Wells, at the request of the deceased, unlocked it, when defendant and deceased engaged in a conversation about the money. The gate did not swing upon hinges, but was a sliding gate, and hung on rollers. Defendant said to deceased: "You was not down at the hotel." Deceased said he could not come down because the baby was sick. Defendant said: "Wells, I want to get that money, and also an order on Parks." Deceased said: "I won the money fair and square, and I ought to keep it." The defendant replied: "I have got to have that money to-night." Deceased said: "You had better wait until morning, and we can settle." Defendant said that he was not going to wait; that it had "to be settled to-night;" that he (the defendant) had "acted a gentleman, and you [the deceased] have acted a dirty son of a bitch." Immediately upon saying this, the defendant fired the shotgun at the deceased; the testimony of Mrs. Wells being that the charge passed near her face, — near enough to be felt; that she was standing near the deceased. Wells immediately fired two shots with the pistol which he had taken to the gate with him, when defendant fired the second shot with the shotgun, which struck Wells, who staggered and fell, saying: "I have been killed." From the effects of this wound the deceased died within less than an hour. The defendant immediately ran away in the direction of Bolivar, passing through the town, and out to a friend's by the name of Reed, from whom he borrowed a horse and hurried away, going east in the opposite direction from Bolivar, his home, traveling several miles, until he reached the house of I. H. Middleton, where he stopped, remaining until the following day, until his arrest. When he reached this place, a wound was found in his right leg. It appears that, while he was here, he sent a boy down to Halfway to ascertain whether or not Wells was dead; that he sent Middleton for an officer, who arrested him and took him back to Bolivar. To the officer who arrested him he said: "Oh, my God, it is awful! * * * I went out to the fair ground to run a sandy on him, but it wouldn't work." The evening before the night of the homicide, deceased sent to town and got a new pistol and a box of cartridges. When he started to the gate to meet defendant, he put a pistol in his pocket. Several persons who saw the shooting testify that there were but three shots fired, while others testified to hearing four different reports of firearms. Wells shot twice before being killed. The ground where the parties stood at the time of the shooting was bare. One empty shotgun shell was found where defendant stood, and wadding for one load was found inside the fair ground. The court instructed for murder in the first degree and self-defense. The case is in this court on defendant's appeal.

There was ample evidence upon which to predicate an instruction for murder in the first degree. It is not necessary under our statute, in order to constitute murder in the first degree, that the murder should be committed by means of poison or by lying in wait, or that it should be committed in the perpetration, or attempt to perpetrate, arson, rape, robbery, burglary, or mayhem, but any kind of willful, deliberate, and premeditated killing is murder in the first degree. State v. Stephens, 96 Mo. 638, 10 S. W. 172; State v. Woods, 97 Mo. 31, 10 S. W. 157; State v. Wilson, 85 Mo. 134; State v. Howell (Mo. Sup.) 23 S. W. 263. Defendant's acts in preparing himself with the shotgun, going to where deceased was after night, calling him up, getting into a conversation with him, and then, according to the evidence on the part of the state, firing the first shot, were, to say nothing of threats, circumstances tending strongly to show premeditation and deliberation, and from which, when taken into consideration with the fact of the killing, a deliberately formed purpose on the part of the defendant to take the life of the deceased might well be deduced. Upon the other hand, according to the testimony of the defendant himself, to the effect that he went to where deceased was for a lawful purpose, without any intention of doing him harm, but merely to get a settlement out of him, and prepared himself with the gun simply for self-protection, if true, although he may have fired the first shot, showed an absence of deliberation, and reduced the killing to a less grade of offense than that of murder in the first degree, if not done in self-defense. Harry Wells, a witness for the state and to the homicide, testified that "both when defendant called deceased out and when he talked to him before he shot he seemed to be in a good humor, but just as he fired he seemed to get a little bit angry." This evidence also tends to show a want of deliberation, and we think, especially when taken into consideration with the evidence of the defendant, clearly entitled him to an instruction for murder in the second degree, which it was the duty of the court to give, whether asked for or not. If the killing was intentional, but without deliberation, and as it was not done in an attempt to commit a felony, it was murder in the second degree, unless justifiable. State v. Foster, 61 Mo. 549; State v. Hudson, 59 Mo. 135. "To constitute murder in the second degree, the elements of willfulness, premeditation, and malice aforethought must exist together in the act." Kelly, Cr. Pr. § 488; State v. Lowe, 93 Mo. 347, 5 S. W. 889; State v. Young (Mo. Sup.) 24 S. W. 1038. The facts disclosed by the evidence show that the defendant was guilty of murder in the first or second degree, unless justifiable on the ground of self-defense. There was nothing to reduce the homicide to manslaughter in either degree.

The second instruction given on behalf of the state is assailed because the word "deliberately" was improperly defined as follows: "the word `deliberately,' as used in the indictment and in the instructions, means a cool state of blood." This instruction is not in accord with the recent decisions of this court. It should have gone further, especially under the facts in the case, and told the jury that "deliberately" does not mean brooded over, considered, or reflected upon for a week, a day, or an hour, but it means an...