State v. Gartrell

• Citation: 171 Mo. 489,71 S.W. 1045
• Parties: STATE v. GARTRELL.
• Decision Date: 03 February 1903
• Court: United States State Supreme Court of Missouri

71 S.W. 1045

171 Mo. 489

STATE v. GARTRELL.

Supreme Court of Missouri, Division No. 2.

February 3, 1903.

MURDER—INFORMATION—FILING SECOND INFORMATION—JURORS —COMPETENCY—EVIDENCE —STATEMENTS OF COUNSEL—APPLAUSE BY AUDIENCE — INSTRUCTIONS— SELF-DEFENSE — MANSLAUGHTER — PROVOCATION—WORDS.

1. After the term at which the judgment in a criminal case was entered, and time allowed defendant to file his exceptions had elapsed, and an entire new term had intervened, the circuit court could not allow an amended bill of exceptions, containing an exception not previously of record, even though the attorney general, by stipulation, consented thereto.

2. Where, on a murder trial, a juror, on his voir dire, stated that he had formed an opinion from reading newspaper statements; had not talked with any witness, and could render a fair and impartial verdict on the evidence, and had no prejudice; had seen a person who lived in the neighborhood of the homicide, who spoke of the burial of the murdered man, but did not detail any facts to show that defendant was guilty of the crime,—such juror was competent.

3. Where, on a trial for murder, there was evidence that deceased was killed with a sharp instrument, in the nature of an ax or hatchet; that his body was found in a creek, and about 300 yards from the body an ax was found in the creek; that his team was driven from the place, where he and defendant had been together, near this creek, by defendant; and that defendant had confessed that he killed deceased with an ax, and none was found at the cabin where they had been, nor with the wagon,—it was not error to admit the ax in evidence.

4. On a trial for murder, witnesses testified that they saw defendant, deceased, and another riding together, and at a cabin, where they stayed two days, and saw defendant and such other man with the same team after they left the cabin where the deceased was killed. Over defendant's objection, his son, who was jointly indicted for the crime, was brought into court, and identified by the witnesses as the man who was with defendant at such time. Held not error.

5. Where, shortly after a murder, defendant left a team belonging to deceased with a man, to be kept for a few days,—the wagon containing certain wearing apparel and other property, including a pocketbook, with papers, belonging to deceased,—and such team, wagon, and contents were delivered by such man, on defendant's written order, to his messenger, and afterwards turned over to detective officers and identified, the admission of such wearing apparel and property in evidence on the trial of defendant for the murder was not error.

6. The prosecuting attorney, in his opening statement on a trial for murder, referring to the possession by defendant of considerable money just after the murder, said, "It will be shown, before that time he had no money; that he was a bum in and about Kansas City, without means, without support; that he had very inferior clothing; they looked shabby." Held, that such statement was not objectionable, especially as it was followed by proof of every fact as stated.

7. Where no objection or exception is taken at the time to the remarks of counsel in a criminal case, they will not be reviewed on appeal.

8. Where a remark by counsel in a criminal case was objected to, and the objection promptly sustained, and no exception was taken on the ground that the rebuke was not sufficiently severe, such remark will not be reviewed on appeal.

9. Where the prosecuting attorney, in his closing argument on a trial for murder, said, "This man, beyond all question or shadow of doubt, is a deliberate, willful, and premeditated murderer," and, in referring to the presence of deceased and defendant in the cabin where the murder was committed, said, "An assassin is there. A snake is in his [deceased's] presence,"—such remarks, though excepted to, are not ground for reversal, as counsel merely called defendant what the evidence for the state tended to prove him to be.

10. Where, at the close of the argument of the prosecuting attorney in a criminal case, some of the audience showed their approval by stamping, when the court ordered the sheriff to arrest every person guilty of such conduct, and, on the sheriff reporting that he was unable to tell what persons were stamping, the court at once sternly rebuked such conduct, such facts do not show any dereliction on the part of either the judge or the sheriff,—especially as no previous disorder had occurred.

11. Where the court had given a most liberal instruction on the law of self-defense, and also instructed the jury that even though they believed that defendant, after the killing, took the money and property of deceased, that constituted no crime for which he could be punished on a trial for murder, and that evidence of such taking was only admitted to throw light, if any, on the charge for murder, and could not be considered for any other purpose, the refusal to give an instruction, asked by defendant, that, if he killed deceased in self-defense, the jury should acquit defendant, although they believed he afterwards took the property of deceased, was not error.

12. An instruction that, if deceased used words towards defendant which were a reasonable provocation for an assault by defendant on deceased, defendant is only guilty of manslaughter in the fourth degree, was properly refused, since such provocation by mere words would only reduce the grade of the offense to murder in the second degree where the party provoked used a deadly weapon with which he killed his opponent.

13. Where the defendant's own evidence and confessions, corroborated by other evidence, fully established the corpus delicti, and defendant's criminal agency in the killing of deceased, an instruction that the case was wholly circumstantial was properly refused.

14. Where, on a trial for murder, there was no proof that defendant was of good character, the failure of the court to instruct on good character was not error.

15. Where there was no eyewitness to a homicide, other than defendant, and, according to his unsupported statement, he was armed with an ax, and deceased with a wrench, of which no description was given, and deceased, after using a certain opprobrious term, came toward defendant, who struck him with the pole or helve of the ax, solely in self-defense, and no claim is made in his testimony that he acted in the heat of passion, while the testimony of the physician who conducted the inquest, and other witnesses, who viewed the body, clearly showed that deceased had been slain with the sharp edge of the ax, an instruction on manslaughter in the fourth degree was properly refused.

Appeal from circuit court, Bates county; W. W. Graves, Judge.

James L. Gartrell was convicted of murder in the first degree, and appeals. Affirmed.

From a conviction of murder in the first degree, the defendant appeals. On or about the middle of March, 1901, D. B. Donegan, who had been living in Victor, Colo., engaged in mining and investing in mining stocks in a limited way, appeared in Kansas City, Mo. About that time he purchased a wagon and team at the sale stables of J. J. Kirby, 526 Grand avenue, in said city, paying cash for the same. On the 18th of March, 1901, three men, strangers in that community, were observed in the neighborhood of Amoret, a town on the western border of Bates county, traveling in a new two-horse farm wagon. The evidence in this case identified the three strangers, beyond all doubt, as D. B. Donegan, the deceased; James W. Gartrell, the defendant; and his son, William Gartrell. While in that neighborhood they occupied a deserted log cabin for two nights. Newton McMullen, who lives near Amoret, saw the defendant and the deceased together while they were stopping at the cabin. He sold the deceased corn and eggs, and was at the cabin after they left, and saw blood on the floor, east of the door. He also found a pair of gloves that he had seen deceased wearing the day before they left. Wagon tracks were visible close to the cabin, and leading out west to the road, and thence north for three-quarters of a mile, and thence east. The creek was not fordable at that time, and there was no bridge in the immediate vicinity of the cabin, by which they could have gone south. The wagon did not follow the main road, but turned into a gate, and followed an unfrequented way east. John McMullen testified to seeing defendant and deceased at the shanty for two days. They left there about the 19th or 20th of March, 1901. He saw the blood in the cabin two days after they left. In April, after these parties were seen at Amoret, and at the old shanty, two boys, the sons of F. B. Nichols, who lived about a quarter of a mile from Mulberry creek, a stream about 2½ or 3 miles southeast of Amoret, found the dead body of D. B. Donegan in Mulberry creek. They were fishing, and caught it with their hooks. Discovering that it was the body of a dead man, one of them went for their father. Mr. Nichols came, and saw the body in the creek. The coroner, Dr. Renick, was notified, and an inquest held. When the body was taken from the creek, it was clothed with a heavy knit shirt, a pair of drawers, corduroy pantaloons, and a black overshirt. No coat, vest, or shoes were on the body. Some white cloths were tied over and around his head, and over these a large sack or bag, and over all a blanket was wrapped, and tied with whipcord. Dr. O. F. Renick, the coroner, testified that he was present when the body was removed from the creek, and that it was clothed and wrapped as above detailed by Mr. Nichols. An examination by the coroner disclosed a cut in the temporal bone, or base of the skull, 2 or 3 inches deep, and 3½ or 4 inches long; and when the skin was removed the wound stood open, so that the doctor could readily put his finger in it. The wound was evidently produced by a sharp instrument, and such as would have...