State v. Greaves
| Decision Date | 01 June 1912 |
| Citation | 147 S.W. 973,243 Mo. 540 |
| Parties | THE STATE v. AUSTIN GREAVES, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Eugene McQuillin Judge.
Affirmed.
Aug Walz, Jr., for appellant.
(1) The court erred in admitting the testimony as to the arrest of defendant, on the charge of arson, at least twenty days before the commission of the crime with which this defendant is charged, the testimony being incompetent and irrelevant in that such testimony is prejudicial to defendant and tends to prejudice the minds of the jury against him and was compelling defendant to meet charges of which the information gives no notice and permits the jury to infer from the commission of one crime that the defendant is guilty of the crime charged. State v. Speyer, 194 Mo. 460; State v. Speyer, 207 Mo. 540; State v Hyde, 234 Mo. 201. (2) The court erred in submitting to the jury the question of murder in the first degree; there was nothing in the evidence that would have justified a conviction of murder in the first degree. For in the prosecutions for murder in the first degree, deliberation and premeditation are never presumed. They must be shown in order to make out the offense -- State v. Lane, 64 Mo. 319 -- as the law is well settled in this State that, where it is shown that the accused shot and killed his victim with a deadly weapon, and nothing more appears, then the law will presume the crime was murder in the second degree. State v. Anderson, 98 Mo. 461; State v. Fitzgerald, 130 Mo. 434; State v. Minor, 193 Mo. 598. If deliberation means prolonged premeditation, as defined by this court in State v. Speyer, 207 Mo. 552, the instruction as to murder in the first degree was not justified by the evidence. There is testimony that tends to show that a few minutes prior to the shooting, Frank Steveson, who testified for the State, says, there was a quarrel before the shooting. For if a quarrel arose after he went down stairs to order Hunter away and if the killing was without malice aforethought, it is manslaughter in the fourth degree. State v. Speyer, 207 Mo. 556. (3) The court failed to instruct the jury that the defendant had the right to act upon appearances, though it might thereafter turn out that the appearances were false if he had reasonable cause to believe, and did believe, it to exist. State v. Darling, 202 Mo. 163. Whenever the court, in a criminal case, undertakes to instruct on a question of law, the instruction should guide the jury fairly whether the attention of the court is drawn to the matter, or proceeds of its own motion. State v. Harris, 232 Mo. 317. (4) The court erred in giving instruction five, on the grounds that this instruction is erroneous and confusing, and deprives the defendant of his rights under the law. State v. Darling, 202 Mo. 150. This instruction made it incumbent upon the defendant to show that threats had been made prior to the shooting and that they were communicated to him and does not justify the defendant acting upon appearances at the time of the shooting, unless threats had been made and communicated to him prior to the shooting. (5) The court erred in refusing to give the instructions asked by the defendant as to whether or not the defendant was insane at the time of the commission of the offense, since the commission of the offense or since the impaneling of the jury. As the record of this case will show that the defendant's actions were such that a jury should have had an opportunity to pass upon the man's mental condition during the progress of the trial, the question as to his sanity or insanity should have been submitted to them. The instruction asked, though it may be erroneous, is sufficient to require the court to instruct as to questions presented by such erroneous instruction. State v. Moore, 160 Mo. 443; State v. Reed, 154 Mo. 122. (6) The court erred in refusing to permit the defendant to try his own case and without the assistance of counsel. The court can only appoint or assign counsel for a defendant charged with a felony when requested by the defendant, and when the defendant fails to request that counsel be appointed he waives his statutory right. In this case the defendant most strenuously objected to the court appointing counsel, but insisted that he be granted his right to conduct his case without counsel, and which he had a right to do under art. 2, sec. 22 of the Constitution. State v. Moore, 121 Mo. 522. Sec. 5164, R. S. 1909, imposes a duty on the court to appoint counsel for a defendant charged with a felony, when requested by the defendant. State v. Terry, 201 Mo. 701.
Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
(1) The court did right in appointing counsel. The record shows that counsel was very considerate in permitting the appellant to represent himself throughout the trial, at the same time preserving all of appellant's rights in questioning the witnesses and filling up the gaps as to matters which the appellant had not covered by his own inquiry. (2) The instructions (a), as to murder in the first degree, defining the terms willfully, deliberately, premeditatedly, malice and malice aforethought; (b), presumption of intention in the use of a deadly weapon at some vital part, infers presumption from same; (c), murder in the second degree; (d), self-defense; (e), threats; (f), the reason of the admission of threats; (g), as to defendant's declarations; (h), information, formal charge, presumption of innocence, reasonable doubt and credibility of witnesses; (i), competency of defendant's testimony; (j), refused instructions, are in proper form. (a), State v. Gatlin, 170 Mo. 354; State v. Spaugh, 200 Mo. 571; State v. Rasco, 239 Mo. 535; (b), State v. Brown, 188 Mo. 451; (c), State v. Todd, 194 Mo. 377; (d), State v. Darling, 202 Mo. 150; (e), State v. Darling, 199 Mo. 168; State v. Edwards, 203 Mo. 528; (f), State v. Parker, 172 Mo. 191; (g), State v. Clow, 131 Mo.App. 548; State v. Chappell, 179 Mo. 324; (h), State v. Speritus, 191 Mo. 24; State v. Bond. 191 Mo. 555; (i), State v. Taylor, 134 Mo. 109; (j), State v. Coates, 174 Mo. 396. The court properly refused the instruction asked by the defendant for the reason insanity is not made a defense and there is no evidence that the defendant was insane. The appellant did not ask an instruction on manslaughter in the fourth degree, and is therefore in no position to complain. If he desired an instruction upon manslaughter in the fourth degree, he should have asked the court to give said instruction. R. S. 1909, sec. 5231; State v. McCarver, 194 Mo. 717; State v. West, 202 Mo. 128. Instruction 4 follows the law of self-defense. The authorities cited by appellant do not mitigate against this instruction. Instruction 5 told the jury they must consider all the threats which they might believe from the evidence were made by the deceased against the appellant. State v. Smith, 114 Mo. 406. This instruction does not fall within the line of the Darling case, because it tells the jury that "they should consider all the threats which you may believe from the evidence were made by the deceased against the defendant." R. S. 1909, sec. 4451. If the defendant desired an instruction on manslaughter, or on any other phase of the case, that he thought was not covered by the instructions given by the court, he should have first saved his exceptions to the court's failure to so instruct and then requested the court to instruct upon those phases of the case upon which he desired instructions by pointing them out. The trial court is entitled to the fair treatment rule. State v. Vinso, 171 Mo. 591. The court submitted to the jury the questions of murder in the first and second degrees, and that question was properly left to the jury under appropriate instructions. The jury convicted of the higher grade of offense, that is to say, murder in the first degree. Appellant is in no manner prejudiced by reason of the verdict as murder in the second degree was submitted to them and they found him guilty of murder in the first degree. He is, therefore, in no position to complain. State v. Fitzgerald, 130 Mo. 435.
The defendant having been convicted of murder in the first degree in the circuit court of the city of St. Louis, and sentenced to life imprisonment, has appealed.
He lived on "Dago Hill" in that city; and the deceased, Hunter, lived near him in the same block.
Defendant was the janitor of a "flat" building, which seems to have been untenanted at the time, except by the defendant and his family, consisting of his wife and several children. The deceased had several children. The defendant was charged by his neighbors with persecuting their children, and there were some countercharges.
A member of the police force, over defendant's objection and exception, was permitted to testify that shortly prior to the killing he arrested the defendant on a charge of attempted arson made against defendant by Hunter, and that defendant knew that Hunter was the cause of the arrest.
The evidence showed that the prosecution for arson was dropped.
The evidence for the State tended to prove that defendant was sitting on an upstairs porch, and that he got up, went into the house, got a pistol, came back on the porch, passed down the steps into his back yard and looked around a coal shed and then turned and went back to his gate and stepped out beyond the view of the State's witnesses, and in a few seconds two shots were fired. Hunter fell and died with one shot in his back and one in the back of his neck, both about two and a half inches to the left of the spine. No weapon of any kind was found on...
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