State v. Glasscock

• Decision Date: 07 February 1911
• Citation: 134 S.W. 549,232 Mo. 278
• Parties: STATE v. GLASSCOCK.
• Court: Missouri Supreme Court

134 S.W. 549

232 Mo. 278

STATE v. GLASSCOCK.

Supreme Court of Missouri, Division No. 2.

February 7, 1911.

1. INDICTMENT AND INFORMATION (§ 147) — DEMURRER TO INDICTMENT.

An indictment is not demurrable for matters not appearing on its face, such as irregularities in the impaneling of the grand jury and in the qualification of its members.

2. INDICTMENT AND INFORMATION (§ 10) — GRAND JURY — IMPANELING AND QUALIFICATION.

An indictment is not assailable because of statutory requirements in the ordering and impaneling of the grand jury not being complied with, or because of failure of a member of the grand jury to properly qualify, these not being among the grounds of objections which Rev. St. 1909, § 5067, authorizes to be made to a grand juror before he is sworn; and challenge on a ground not authorized in such section, either to the array or to the polls, being expressly prohibited by section 5068.

3. CRIMINAL LAW (§ 1091)—APPEAL—BILLS OF EXCEPTIONS.

Pleas in abatement and motions to quash the indictment, being matters of exception, must be preserved in the bill of exceptions, that the rulings thereon may be reviewed; it not being enough that they are in the record proper, and that the evidence in support thereof and the rulings thereon are in the bill of exceptions.

4. HOMICIDE (§ 174)—EVIDENCE—CONDUCT OF DEFENDANT.

Evidence that, though defendant lived within a quarter of a mile of decedent's home, he did not go there, along with his neighbors, after he knew of the homicide, and did not attend the funeral, is competent as tending to prove a consciousness of guilt, notwithstanding the existence of ill will between defendant and deceased.

5. HOMICIDE (§ 174) — EVIDENCE — FALSE STATEMENTS OF DEFENDANT.

Though the state introduced evidence of defendant's presence at certain places shortly before the homicide, witnesses for it could testify to statements of defendant that he was not at such places at such times as proof of falsehoods relevant to a showing of consciousness of guilt.

6. CRIMINAL LAW (§ 1036) — APPEAL — ABSENCE OF OBJECTIONS BELOW.

Objection to the admission of testimony not having been made, the question of its admissibility is not before the appellate court for review.

7. HOMICIDE (§ 166)—EVIDENCE—THREATS.

Evidence of threats of an incriminatory character made by defendant against deceased shortly before the homicide, and of profane and vile epithets spoken by defendant of deceased, even after his death, is competent, and proof of motive.

8. CRIMINAL LAW (§ 782)—INSTRUCTION ON ALIBI.

The instruction that one of the defenses is alibi, and that, if the jury find that defendant

was elsewhere than at the places of the alleged offense, they should acquit him, and that "defendant is not required to establish this defense, beyond a reasonable doubt, but, if from the whole evidence you have a reasonable doubt of defendant's presence at the commission of the alleged offense, you must give him the benefit of that doubt, and acquit him," is not erroneous because of the quoted part.

9. CRIMINAL LAW (§ 814)—ALIBI—EVIDENCE CALLING FOR INSTRUCTION.

An instruction on alibi is not required merely because the state, after showing that shortly before the homicide defendant was near the scene thereof, introduced evidence of statements of defendant that he was not there for the purpose of showing false statements by him.

10. CRIMINAL LAW (§ 1137)—APPEAL—INVITED ERROR.

Though the evidence did not call for an instruction on alibi, defendant, having asked for such an instruction, cannot complain of the giving of an unobjectionable instruction on the subject.

11. HOMICIDE (§ 254)—MURDER—SUFFICIENCY OF EVIDENCE.

Evidence in a homicide case held to support a conviction of murder in the second degree.

Appeal from Circuit Court, Ray County; F. H. Trimble, Judge.

George Glasscock was convicted of murder in the second degree, and appeals. Affirmed.

On the 3d day of November, 1909, the grand jury of Ray county returned an indictment charging George Glasscock with the crime of murder in the first degree. The indictment was in three counts, in each of which, in slightly varying language, the defendant was charged with shooting with a rifle and killing Clyde Hatfield on the 13th day of June, 1909. A demurrer, plea in abatement, and motion to quash the indictment were each, in turn, filed and overruled. The state elected to prosecute for murder in the second degree. The accused was arraigned, entered his plea of not guilty, and was put upon his trial, which resulted in a verdict of guilty; the punishment assessed being a term of 15 years in the penitentiary. Timely motions for new trial and in arrest of judgment were filed and overruled, sentence was pronounced in conformity with the verdict, and an appeal was taken to this court.

The evidence for the state tended to show that during the summer of 1909 Clyde Hatfield was living upon and cultivating a portion of appellant's farm. Bad blood seems to have arisen between the two men. About 10 days before the killing appellant, explaining the purchase of a new rifle, said he wanted to get rid of Hatfield; that Hatfield had stolen about 40 of his chickens; that he got the rifle to "shoot people off the place, and kill some stray dogs." To another witness, a few days before Hatfield was killed, appellant said that Hatfield and Vanbebber were stealing his chickens, and that Hatfield had to get off his place, or he would get him off. He added that he had a Winchester that would kill a man a half mile away, exhibited one pistol, and declared he had another concealed on his person. To another witness appellant said on June 9, 1909, that three of his steers had been shot, and he believed Hatfield did it; that he thought Hatfield had taken some of his chickens; that he had shot one Hatfield, and he died afterwards. On the next day he made like accusations against Hatfield, inquired for him, and said he was hunting him. On the same day appellant said to another witness: "I am on the track of my man and can get him. The thing I want to find out is who loaned the gun. There is a certain class of people in this neighborhood you can't reach by law. All the way you can reach them is with a gun from the brush and let them find it out. That's the way to do it." To another witness appellant said he thought he knew who shot his steers, and added: "I think he has gone to the Springs to see one of his aunts, the party that I think done it. I aim to get the s____n of a b____h when he comes back." It appeared from the testimony of other witnesses that Hatfield had been in Excelsior Springs that week.

The night before he was killed, Hatfield and his family, which included his wife and two small children, stayed at the home of his mother, Mrs. Ida Hatfield, about five miles from the house in which he was living on appellant's farm. He had arranged to move away from appellant's farm on the following Monday. About 9 o'clock on Sunday morning, June 13, 1909, Hatfield, his wife and children, his sister, a Mrs. Kauffman, and Dave Petty, started from Mrs. Ida Hatfield's home to the home of the deceased on the Glasscock farm. In making the trip they passed appellant's house, which stands near the public road. From this point they went west, thence south, and thence east to the Hatfield home. The distance around the road from appellant's house to the Hatfield home is about three-quarters of a mile, but in a direct line through the field the distance is almost exactly a quarter of a mile. Petty having turned off and gone to his own home, the other members of the party reached the Hatfield home about 9:30 o'clock in the forenoon. Hatfield harnessed a horse for his sister, who proceeded to her own home. He then carried some wood into the house, kindled a fire, and shortly before 11 o'clock a. m. started to a guinea's nest southeast of the house, leaving his wife in the garden, where she busied herself with getting vegetables for dinner. In the meantime, a little after 10 o'clock a. m., a neighbor named Fields went to his mail box which stood in the road west of appellant's residence, and in the field between the homes of appellant and Hatfield saw appellant some 350 yards away, walking southward toward the Wilkerson pasture, which lies south of and adjacent to the Hatfield cornfield and garden. Fields testified that appellant had something in his hand which looked like a gun. He said in his testimony that he would not swear that it was a gun, but "it looked to be a gun." Fields had also seen appellant a few minutes before at a point north of where he saw him the second time. Each time he was seen by Fields appellant was walking in a southerly direction. The second time the witness saw him appellant was "down in the hollow." After leaving his wife in the garden, as above stated, Hatfield went southeast into the Wilkerson pasture. Shortly thereafter, and at about 11 o'clock a. m., Mrs. Hatfield heard the report of a gun close at hand. She arose from the ground, where she was sitting beside a lettuce bed, and called her husband, but received no reply. He was not in sight, though he could have been seen by her if he had been standing. Thereupon she hastened to the Barnett home, about a quarter of a mile northwest of the Hatfield home. Barnett returned to the Hatfield home with her, and they went into the pasture which Hatfield had entered just before the firing of the shot. At a point in this pasture about 30 feet south of the garden fence and 200 feet from the house, they found the dead body of Clyde Hatfield, lying face downward in a pool of blood. The head was to the southwest.

An examination of the body indicated, according to the witnesses for the state, that a bullet had entered the body on the left side of the breast, near the shoulder or arm-pit, and had passed out on the right side of the breast, inflicting a wound that caused instant death. The clothing was driven into the wound on...