State v. Garth

• Citation: 164 Mo. 553,65 S.W. 275
• Parties: STATE v. GARTH.
• Decision Date: 12 November 1901
• Court: United States State Supreme Court of Missouri

65 S.W. 275

164 Mo. 553

STATE v. GARTH.

Supreme Court of Missouri, Division No. 2.

November 12, 1901.

HOMICIDE — SUFFICIENCY OF EVIDENCE — JURORS — VOIR DIRE EXAMINATION — DYING DECLARATIONS — CORONER'S CERTIFICATE OF DEATH — INSTRUCTIONS — OMISSION OF "FELONIOUSLY" — DEFINITION.

1. Where a venire man in a criminal case had stated that he knew nothing about the case, and had not formed or expressed an opinion about the guilt or innocence of defendant, it was not error to refuse to permit a question as to whether he had formed or expressed an opinion as to the manner and cause of the death of deceased.

2. In a prosecution for murder, where deceased made a statement as to the manner in which she received her injuries, but said that at times she did not think she was in the presence of death, but reaffirmed such statement later, when she believed her wounds would prove immediately fatal, such statement was admissible as a dying declaration.

3. In a prosecution for murder, a copy of a coroner's certificate of death is inadmissible.

4. The omission of the word "feloniously" in an instruction defining murder is not reversible error.

5. In a prosecution for crime, refusal to instruct the jury that every member thereof must concur in the guilt and degree of guilt of defendant is not error.

6. In a prosecution for crime, defendant is not entitled to separate instructions as to each material fact, directing the jury that, if they have a reasonable doubt as to the evidence of such fact, they must acquit.

7. While accused and deceased were at a party, accused became jealous of deceased and threatened to kill her, and, on being told that he might get into trouble, said he did not care, — he felt "jaily." Later accused began cursing deceased, knocked her down, and kicked her until taken away by another man. Accused then followed deceased into a room where she had gone, met her in the doorway, and, in spite of the efforts of another to hold him, stabbed her so severely as to cause her death, after which he secreted himself. Held sufficient to support a verdict of guilty of murder in the first degree.

Appeal from criminal court, Jackson county; Jno. W. Wofford, Judge.

Albert Garth was convicted of murder, and appeals. Affirmed.

Jas. J. Hitt and W. O. Thomas, for appellant. E. C. Crow, Atty. Gen., and H. S. Hadley, for the State.

GANTT, J.

The defendant, a negro man, was indicted at the January term, 1900, of the Jackson county criminal court, for the murder of Minnie Woods, a negress with whom he had been living, though not married to her; he having a wife and children elsewhere. Having been duly arraigned and pleaded "Not guilty," defendant was placed on trial March 14, 1900, and found guilty of murder in the first degree. The indictment is sufficient. The evidence disclosed that on the night of December 23, 1899, there was a chittling supper and dance held at 2218 East Ninth street, Kansas City, at the house of a negro woman by the name of Henrietta Gray. The defendant seems to have become jealous of the deceased, and made threats that he would "kill the damn whore that night," and, when remonstrated with and warned that he might get into the penitentiary, said he did not care; he felt "jaily." After the party had broken up, defendant called for the deceased, who was in the next room, to come and help put up the bed. She claimed not to have heard him, and when she did come into the room, and said she did not hear him, he called her a "damned liar." They had a few words, and the deceased went into the kitchen, whither he followed her. Then she started to go into the front room, still quarreling, and he followed her. He overtook her, knocked her down, and kicked her, got onto her with his knees, and was pulled off by Lewis Anthony; and while being held by Anthony he pulled out a knife, opened it, and made Anthony turn him loose. Then, after making a rush for the sister of the deceased, who got out of his way, he started for the kitchen, where the deceased had gone, and met her in the doorway. Anthony grabbed him again, and while being held by Anthony he succeeded in stabbing the deceased in the breast, after which he left the house, and was not captured until some three or four days later, when he was found in a house with another woman, in hiding under the bed. The knife did not penetrate the cavity, but it cut some of the arteries in the breast, and she nearly bled to death before medical assistance could be secured. As she was moved about from the floor where she fell to the bed, and from the bed to the stretcher, to be taken to the ambulance, the blood gushed and spurted out. At the police station she was in a condition of collapse, being practically pulseless. The police surgeon did not think she could live to get to the hospital. He hurriedly dressed and packed the wound, and stanched the flow of blood, gave her some medicine to stimulate her heart action, and sent her to the city hospital in an unconscious condition, where she was immediately treated by the transfusion of a salt solution into her veins to take the place of the blood lost, so as to keep up the heart action. She revived somewhat after this, and lived for several days; her condition being all the time very low. Her condition was described on the 27th to be "very low. She was in an unconscious or semiconscious condition; very weak; very rapid pulse; very rapid respiration; suffering great pain; status pneumonia, being in one position in bed for some length of time; condition very low; she was practically as low as when she came in. Q. Status pneumonia is lying in bed in one position? Answer. Yes, sir. Q. What made her lie in the position? Answer. The wound. Q. What is that caused by? Answer. By the patient being compelled to lie in bed in one position." Her condition continued much the same until she died, on January 1, 1900, in the city hospital, Kansas City, Mo. The medical testimony was to the effect that the wound was not necessarily fatal, if the wounded woman could have had competent surgical attention at once, — that is to say, within ten minutes after its infliction; but so much time had elapsed and she had lost so much blood before she reached the police surgeon, Dr. Manahan, that no doubt can be entertained that it was the immediate cause of her death. It appears that she received prompt and skillful attention and treatment from the time she reached the city hall until her death in the city hospital, and the evidence disclosed she was taken to the police surgeon as rapidly as possible after the police learned of the difficulty, which was almost immediately. After stabbing the woman, defendant fied, and was apprehended some days later while hiding under a bed on what is denominated "Can Alley," a part of Harrison street. After his arrest, defendant made a statement in which he admitted he was in the difficulty with the deceased, but said he did not know he cut her, and if he did it was accidental. Deceased made a dying statement. Various points are urged for reversal, all of which will be considered.

1. The first assignment of error is that the court erred in refusing to permit counsel for defendant to ask the juror G. E. Hudson, on his voir dire, whether he had formed or expressed an opinion as to whether Minnie Woods, the deceased, was stabbed, and whether she had died from a stab wound. This juror had previously stated that he knew nothing about the case, and had not formed or expressed any opinion about the guilt or innocence of defendant; that he might have read something about the matter in the newspapers at the time, but had no recollection of it at that time. It was after these answers that counsel for defendant propounded the questions as to whether he had formed an opinion whether deceased was stabbed, or died from a stab. While the greatest latitude is allowed counsel for defendant on voir dire...