State v. Grant

• Decision Date: 31 October 1899
• Citation: 152 Mo. 57,53 S.W. 432
• Parties: STATE v. GRANT.
• Court: Missouri Supreme Court

53 S.W. 432

152 Mo. 57

STATE v. GRANT.

Supreme Court of Missouri, Division No. 2.

October 31, 1899.

HOMICIDE — INSTRUCTIONS — CRIMINAL LAW — APPEAL — NECESSITY OF OBJECTIONS.

1. Failure to define the word "feloniously" used unnecessarily in an instruction as an ingredient of the crime of murder does not render the instruction erroneous.

2. Where the weapon used was a pocketknife, an instruction that if the jury find, from the evidence, that the defendant took the life of deceased by stabbing her "with a knife, and that said knife was a deadly weapon," etc., properly submitted the question whether such knife was a deadly weapon.

3. Where the killing was without any just cause or provocation, the failure to define the term "just cause or provocation," as used in an instruction, was not error.

4. An instruction that "`deliberately' means in a cool state of blood; it does not mean brooded over, or reflected upon, * * * but means an intent to kill executed * * * in a cool state of the blood, in furtherance of a firm design to gratify a feeling of revenge, or * * * some other unlawful purpose, and not under the influence of a violent passion suddenly aroused by some provocation," is not open to objection.

5. When the instructions given at the instance of the state or by the court on its own motion present the case fairly to the jury, it is not error to refuse instructions requested by the accused, covering the same ground.

6. An objection that the jury were not legally summoned, in that the special veniremen were summoned before the return of the second indictment, under which defendant was tried and convicted, is too late when made for the first time on appeal.

7. An objection that defendant was cross-examined with respect to matters not testified to in chief cannot be raised for the first time on appeal.

Appeal from circuit court, Platte county; W. S. Herndon, Judge.

Charles Grant was convicted of murder, and appeals. Affirmed.

Guy D. Park and Blake L. Woodson, for appellant. Edward C. Crow, Atty. Gen., for the State.

BURGESS, J.

Defendant was indicted and convicted in the Platte circuit court of murder in the first degree for having at said county, on the night of the 22d day of October, 1897, stabbed to death with a pocketknife his wife, Maggie Grant. He appeals.

At the time of the homicide, defendant, who is a negro, and his wife, and one Charles Caldwell, who married his wife's sister, lived in adjoining property in Kansas City, Mo. The parents of the two women, and a brother, who was reputed to be sick, lived in Parkville, Platte county, a small town on the Kansas City, St. Joseph & Council Bluffs Railroad, about 12 miles north of Kansas City. On the 20th of October, 1897, the wives of Caldwell and defendant, with the permission of their respective husbands, went to Parkville to see their sick brother. On their arrival they stopped with a sister, Mrs. Grant Hughes, who also lived in Parkville, and on the next day visited their sick brother, returning to the house of Mrs. Hughes about 4 o'clock in the afternoon, where they remained until the homicide occurred. About 6 o'clock in the afternoon of the 22d of October, Caldwell called at the place where the defendant worked, and suggested that they go to Parkville that night, and said that he believed that the two sisters had misrepresented things to them; that their brother was not sick, and that there was to be a dance, he thought, at Parkville, and that was the reason the women wanted to go. The defendant then agreed to accompany Caldwell to Parkville on the 9:15 train that night. Caldwell suggested that his coat was so light he did not want to carry his pistol with him, and asked the defendant to carry the same, saying that he would carry the bottle of whisky with which he had provided himself. This the defendant consented to do, and the two went to the station to take the train to Parkville, and arrived there about 10 o'clock. The defendant had never been to Parkville before, and Caldwell, not knowing where the brother lived, started direct to the house of Grant Hughes, his brother-in-law, where the wives of the defendant and Caldwell were. To reach this house from the station it was necessary to go up a hill, then down through an open piece of ground, and across a small drain through the gate into the yard of the house. It was dark, and as defendant and Caldwell moved down the hill towards the house defendant and Caldwell saw a woman's figure pass in at the door of the house, which faced east, and about this time some man passed the defendant and Caldwell, coming away from the house. This aroused the anger of the defendant, and he rushed into the house, and into the kitchen, and then pulled out his pistol, and Caldwell's wife and Hughes' wife seized him, and, with the assistance of others present, disarmed him. Defendant then became quiet, and apologized to those present for his misconduct. Deceased was in the north room of the house at the time; there being two rooms, one of which faced east. The door from the outside opened into this room, which was separated from the kitchen by a small partition. The kitchen was located in the south end of the house, and was reached by a doorway through the partition. After defendant had apologized for the disturbance he had caused in the house, deceased stepped from the front into the kitchen room, and, defendant testified, beckoned to him to follow her, which he did, and that when he got close enough to her for her to do so she threw her arms around his neck and shoulders, and tried to throw him down, at the same time calling on her sister for help; that she was stronger than he was; that he begged her to release her hold upon him, and finally told her that if she did not let go of him he would cut her loose, and that with his right hand he got a knife from his pocket, and cut her once in the breast with it, because he feared others were coming to help her, and that he would be thrown down and killed.

The court, over the objection and exception of defendant, instructed the jury as follows:

"(1) That the indictment in this case is of itself a mere formal accusation, and is not of itself any evidence of the guilt of the defendant, and no juror should permit himself to be in any way influenced against the defendant because or on account of the indictment in the case. (2) That before they can convict the defendant they must believe and be satisfied of his guilt beyond a reasonable doubt. In this connection the court further instructs the jury that, to authorize you to acquit upon reasonable doubt alone, such doubt must be a substantial doubt of defendant's guilt, and not a mere possibility of defendant's innocence. (3) That the law clothes the defendant with the presumption of innocence, which attends and protects him through every stage of the proceedings against him until it is overcome by the testimony which proves his guilt beyond a reasonable doubt. It is not enough, in a criminal case, to justify a verdict of guilt, that there may be strong suspicion, or even strong probabilities, of the guilt of the defendant, but the law requires proof by legal and credible evidence of such a nature that, when it is all considered, it produces a clear and satisfactory conviction of defendant's guilt; and unless the state has so proven the guilt of defendant in this case he is entitled to a verdict of not guilty. (4) If you believe and find from the evidence in this case that the defendant, Charles Grant, at the city of Parkville, county of Platte, and state of Missouri, on or about the 22d day of October, 1897, did feloniously, willfully, deliberately, premeditately, and of his malice aforethought make an assault upon Maggie Grant with a certain knife, and then and there with said knife feloniously, willfully, deliberately, premeditately, and of his malice aforethought did kill the said Maggie Grant by stabbing her upon her breast and body, and thereby inflicting upon her a mortal wound, of which said wound she, within a year and a day thereafter, died, at the said city of Parkville, in the county of Platte, and state of Missouri, during the month of October, 1897, and was thus killed by the stabbing aforesaid, as charged in the indictment, then you will find the defendant guilty of murder in the first degree, and will so state in your verdict. (5) He that willfully — that is, intentionally — uses upon another at some vital part a deadly weapon must, in the absence of qualifying facts, be presumed to know that the effect is likely to be death, and, knowing this, must be presumed to intend death, which is the probable consequence of such an act; and, if such deadly weapon is used without just cause or provocation, he must be presumed to do it wickedly and from a bad heart. If, therefore, you find and believe, from the evidence in this cause, that the defendant took the life of Maggie Grant by stabbing her in a vital part with a knife, and that said knife is a deadly weapon, with manifest design to use such weapon upon her, and with sufficient time to deliberate, and duly form the conscious purpose to kill her, and without sufficient or just cause or provocation, then such killing is murder in the...