State v. Green

• Decision Date: 30 June 1910
• Citation: 129 S.W. 700,229 Mo. 642
• Parties: STATE v. GREEN.
• Court: Missouri Supreme Court

129 S.W. 700

229 Mo. 642

STATE v. GREEN.

Supreme Court of Missouri, Division No. 2.

June 30, 1910.

1. INDICTMENT AND INFORMATION (§ 196)— OBJECTIONS—VERIFICATION—WAIVER.

An objection that an information is verified by the prosecuting attorney only, and not upon the affidavit of any witness, is waived by failure to challenge the information by motion to quash, and cannot be made for the first time by objection to the introduction of testimony.

2. CRIMINAL LAW (§ 406)—EVIDENCE — ADMISSIONS —VOLUNTARY CHARACTER.

In a murder trial, where there was no evidence that defendant was threatened or was offered immunity, his statements obtained by the questioning of officers while he was under arrest in explanation of the absence of his hat and the torn condition of his clothing were not inadmissible nor incompetent, though he was not advised he was charged with murder.

3. CRIMINAL LAW (§ 377)—EVIDENCE—REPUTATION OF DEFENDANT.

In a trial for murder, a question whether defendant was a hard-working, industrious, honest colored boy was properly excluded; this not being the proper way to prove his general reputation for peace and quietude, nor good character.

4. HOMICIDE (§ 193)—EVIDENCE — ADMISSIBILITY — SELF-DEFENSE — POSSESSION OF WEAPON BY ACCUSED.

In a murder trial, testimony of the sheriff as to the finding of a pick with which defendant claimed deceased threatened him, and the marking of the place by digging a hole, was admissible.

5. CRIMINAL LAW (§ 351)—EVIDENCE—ADMISSIBILITY —SUBSEQUENT CONDUCT OF DEFENDANT.

In a murder trial, there was no error in excluding testimony of the sheriff that defendant had given no trouble since his arrest.

6. HOMICIDE (§ 188)—EVIDENCE—REPUTATION OF DECEASED.

In a murder trial, the general reputation of deceased as being of a rash, turbulent disposition

is admissible where the defendant justifies on the ground of self-defense.

7. HOMICIDE (§ 188)—EVIDENCE—REPUTATION OF DECEASED—SPECIFIC ACTS.

In a murder trial, evidence of specific acts of violence of deceased is inadmissible, even on cross-examination, to show his reputation as of a rash, turbulent disposition.

8. WITNESSES (§ 277)—CROSS-EXAMINATION —SCOPE AND EXTENT—ACCUSED IN CRIMINAL PROSECUTIONS.

In a murder trial, where defendant testified that he shot and killed deceased in self-defense, questions on cross-examination as to whether he shot to kill, or intentionally shot the deceased, were proper.

9. HOMICIDE (§ 340)—APPEAL—REVIEW—INSTRUCTIONS.

Where defendant was found guilty of murder in the second degree, instructions as to murder in the first degree are not subject to review on appeal.

10. CRIMINAL LAW (§ 829)—TRIAL—INSTRUCTIONS— REQUESTS—INSTRUCTIONS ALREADY GIVEN.

The refusal of an instruction in regard to the weight of testimony of defendant was harmless where the court had given a proper instruction on the subject on its own motion.

11. CRIMINAL LAW (§ 814)—TRIAL—INSTRUCTIONS— APPLICABILITY TO EVIDENCE.

An instruction was properly refused where there was no testimony on the subject.

12. INDICTMENT AND INFORMATION (§ 47)— REQUISITES—PRELIMINARY EXAMINATION.

It is not essential that an information should show on its face that the defendant was given a preliminary examination.

13. CRIMINAL LAW (§ 225)—PRELIMINARY EXAMINATION—WAIVER.

Defendant in a criminal prosecution may waive the privilege of preliminary examination before a justice of the peace.

14. CRIMINAL LAW (§ 1055)—APPEAL—PRESENTATION OF QUESTION IN LOWER COURT— ARGUMENT OF COUNSEL.

Objections to improper argument of counsel will not be considered on appeal where no exception was taken at the trial.

15. CRIMINAL LAW (§ 655)—TRIAL—REMARKS OF JUDGE.

A remark of the court in excusing the regular panel of jurors and directing them not to remain in the courtroom during the progress of the trial because there was a case on the docket to be tried immediately following this one in which some of the same evidence would be introduced was not error.

16. JURY (§ 97)—COMPETENCY OF JURORS.

In a trial of a negro for murder, the fact that a juror had engaged in a personal difficulty with a negro because the juror refused to drink at the bar of a saloon at the same time with the negro did not disqualify him as a juror in the case.

17. HOMICIDE (§ 332)—APPEAL—REVIEW— QUESTIONS OF FACT—SELF-DEFENSE.

In a trial for murder, the verdict of the jury on conflicting evidence as to defense of self-defense is final.

Appeal from Circuit Court, Montgomery County; James D. Barnett, Judge.

Arthur Green was convicted of murder in the second degree, and appeals. Affirmed.

E. W. Major, Atty. Gen., and Chas. G. Revelle and John M. Dawson, Asst. Atty. Gen., for the State.

GANTT, P. J.

On the 30th of November, 1908, the prosecuting attorney of Montgomery county filed in the office of the clerk of said county an information duly verified charging the defendant with the crime of murder in the first degree in having on the 19th day of November, 1908, shot and killed one Willard Grant. Both the deceased and the defendant were negroes. The defendant being in custody, having been committed by the justice of the peace upon his waiver of a preliminary examination, was duly arraigned at the regular November term, 1908, of the said court, and thereupon the cause was continued to the May term, 1909, to enable the defendant to prepare for trial. At the May term, 1909, the defendant was put upon his trial before a jury and was found guilty of murder in the second degree, and his punishment assessed at a term of 35 years in the state penitentiary. The evidence on the part of the state tended to prove that the defendant was a negro man about 24 years of age, and the deceased, Willard Grant, was also a negro man, married and living in Montgomery City at the time of the homicide. On the night of November 19, 1908, there was a dance at the house of the deceased and a number of negroes were present. Among them was the defendant, Arthur Green, his brother, Wesley Green, Wes Windsor and his wife and her daughter, Mary, or Mamie, Howell. The house of the deceased consisted of three rooms—the kitchen and an east and west room. On the evening of the dance, in the kitchen of the said house, there was a keg of beer. The deceased during the evening was busy most of the time drawing the beer from the keg and delivering it to the guests by the drink. About 10 o'clock that evening, the Windsor woman had observed Wesley Green and her daughter, Mary Howell, out in the yard, and upon Wesley returning to the house she accused him of having taken advantage of her in his relations with her daughter, and a quarrel ensued in which the other women present joined the Windsor woman in the attack upon Wesley Green, and there was considerable disturbance on account of the loud noise occasioned by the talking, threatening, and quarreling. The deceased was at that time still in the kitchen with Wes Windsor, and it appears that Windsor heard some one say that his wife's throat was cut, and he immediately went into the room where Wesley Green and the women were having their disturbance. As he went in, Windsor raised a chair for the purpose of striking Green, and at this juncture the deceased, Willard Grant, came in from the kitchen and commanded peace, and then went out of the house.

The evidence tends to show that, while this attack was being made upon his brother Wesley, the defendant, Arthur Green, left the house and went across the street to his own home, and procured a single-barrel shotgun and some shells, and started back towards the house of the deceased. By this time the guests had dispersed from the house in different directions. The testimony discloses that, as the defendant returned towards the house of the deceased, he met the deceased in the road or street at a point about 58 feet east of the gate in front of the deceased's house, and there shot him with a single-barrel shotgun, making a wound an inch in diameter, three inches below the axilla of the left arm, the shot entering the left lung cavity over the heart and some of them passing to the center of the body. The evidence also tended to prove that a pick belonging to the deceased was found on the ground about 58 feet east of the front gate of the deceased's yard, and that bloody spots were observed on the ground and on the fence leading from a point 17 feet west of where the pick was found to the front porch of the deceased's house where he was found dead a few minutes after the shot was fired. Several witnesses identified the defendant as the person who fired the fatal shot, and one of the witnesses testified that as the deceased came back down the street or road he said: "Where is the black s____ of a b____ at? I will get him"—and soon after fired the shot which killed the deceased. These witnesses also testified that at the time the deceased was shot he had nothing in his hands, no weapon of any kind, and was making no demonstration towards the defendant.

On the part of the defendant the evidence tended to show that his general reputation for peace and quietude in that community was good, and there was some evidence to the contrary. His testimony tended to show that he attended the dance on the night of November 19, 1908, at the home of the deceased, and was one of the musicians on that occasion; that, upon his brother becoming involved in the difficulty with the Windsor woman, he thought his brother was in danger of being seriously injured, and thereupon he immediately went out of the house across the street and to his own home, calling to his brother Wes to come on and go home; that he procured the shotgun and some shells, loaded the gun, and started back towards the house of the deceased; that he stopped and called for his brother Wes, and while standing there he heard some one running towards him, and suddenly discovered the deceased approaching him with a pick in his hands and raised up in a threatening and angry manner as if...