State v. Hanson

• Decision Date: 29 November 1910
• Citation: 132 S.W. 245,231 Mo. 14
• Parties: STATE v. HANSON.
• Court: Missouri Supreme Court

132 S.W. 245

231 Mo. 14

STATE v. HANSON.

Supreme Court of Missouri, Division No. 2.

November 29, 1910.

1. CRIMINAL LAW (§ 1134)—APPEAL—QUESTIONS REVIEWABLE—IMMATERIAL QUESTIONS.

The court on appeal from a conviction of manslaughter in the third degree will not consider the correctness of the instruction on murder in the second degree.

2. INDICTMENT AND INFORMATION (§ 91)—INFORMATION —REQUISITES.

An information for murder must allege that the wounding was feloniously done.

3. INDICTMENT AND INFORMATION (§ 91)—INFORMATION —REQUISITES.

An information alleging that accused feloniously and of his malice aforethought assaulted decedent with a dangerous weapon which accused then and there held in his hands and did feloniously strike decedent with the weapon on the head, fracturing the skull and inflicting a mortal wound of which decedent died, sufficiently alleges that the wounding was done feloniously.

4. CRIMINAL LAW (§ 368)—EVIDENCE—ADMISSIBILITY.

Where, on a trial for murder, the trouble between accused and decedent, resulting in the killing, was independent of other altercations occurring at the time between other parties, evidence of the other altercations, and of statements made by various witnesses after the assault of accused on decedent, was properly excluded,

because immaterial, and not a part of the res gestæ.

5. HOMICIDE (§ 79) — "MANSLAUGHTER IN THIRD DEGREE"—ELEMENTS OF OFFENSE.

Under Rev. St. 1909, § 4462, defining manslaughter in the third degree as the killing of another with the design to effect death by a dangerous weapon, there can be no manslaughter in the third degree where the killing was with the design to effect death and was intentional, but one may be guilty of manslaughter in the third degree, when in the heat of passion he struck and killed the adversary with a dangerous weapon under circumstances authorizing a finding that he did not intend to kill the adversary by the blow.

6. HOMICIDE (§ 45)—MANSLAUGHTER—PROVOCATION.

Words alone, however provoking or insulting, will not reduce a killing to manslaughter, for they do not alone furnish an adequate cause of passion, but an epithet accompanying a demonstration of intended violence by decedent may be sufficient to arouse the passion and furnish a sufficient provocation, and reduce the killing to manslaughter in the third degree.

7. HOMICIDE (§ 271)—MANSLAUGHTER—EVIDENCE.

Where, in a homicide case, the evidence showed the absence of any previous grudge between accused and decedent and showed that decedent had been drinking; that when accused remarked that a club which a third person had kicked was decedent's club; that decedent at once called accused a liar; that, when defendant stated that he should not call him a liar, decedent advanced in a hostile manner, and was warned by accused to stand back or he would hit him with a club which he picked up after the altercation began; that decedent continued to advance with his right hand in the bib of his overalls; that accused then struck decedent on the head with a club, and that as decedent staggered a revolver fell out of his hand—there was evidence justifying a finding that accused struck the fatal blow in the heat of passion on reasonable provocation, reducing the killing to manslaughter in the third degree, so that the court properly submitted the issue to the jury.

Appeal from Circuit Court, Crawford County; L. B. Woodside, Judge.

Jesse Hanson was convicted of manslaughter in the third degree, and he appeals. Affirmed.

Frank H. Farris and Harry Clymer, for appellant. E. W. Major, Atty. Gen., and Jno. M. Dawson, Asst. Atty. Gen., for the State.

GANTT, P. J.

This prosecution was commenced by the filing in the office of the Clerk of the Circuit Court the following information: "State of Missouri, County of Crawford —ss.: In the circuit court, February term, 1909, state of Missouri vs. Jesse Hanson, Defendant. Now, on this day comes Henry W. Smith, prosecuting attorney within and for Crawford county, Missouri, upon his oath of office as said prosecuting attorney, and as he is informed and believes, and informs the court that Jesse Hanson at and in Crawford county, Missouri, on the 15th day of November, 1908, then and there being, did then and there in and upon one William Arthur Huitt feloniously, willfully, on purpose and of his malice aforethought, make an assault, and with a dangerous and deadly weapon, to wit, a stick of wood of the length of four feet and of the thickness of two and one-half inches, which he, the said Jesse Hanson, then and there held in his hands, the said Jesse Hanson, did then and there feloniously, willfully, on purpose and of his malice aforethought forcibly strike and beat him, the said William Arthur Huitt, with the stick of wood aforesaid, in and upon the head of him, the said William Arthur Huitt, crushing, fracturing and breaking the skull of him, the said William Arthur Huitt, giving him, the said William Arthur Huitt, with the stick of wood aforesaid, a mortal wound, of which said mortal wound he, the said William Arthur Huitt, from the 15th day of November, 1908, until the 17th day of November, 1908, in the county of Crawford, and state of Missouri, did languish, and languishing did live, and on the said 17th day of November, 1908, the said William Arthur Huitt, in said county of Crawford, and state of Missouri, of said mortal wound aforesaid, did die. And so the said Henry W. Smith, prosecuting attorney within and for Crawford county, Missouri, aforesaid, upon his oath of office as said prosecuting attorney as aforesaid, does say that the said Jesse Hanson, him the said William Arthur Huitt, in the manner and by the means aforesaid, feloniously, willfully, on purpose and of his malice aforethought, did kill and murder; against the peace and dignity of the state. Henry W. Smith, Prosecuting Attorney. Henry W. Smith, prosecuting attorney within and for Crawford county, Missouri, being first duly sworn, upon his oath says that the facts contained in the above and foregoing information are true and correct according to his best information and belief. Henry W. Smith. Subscribed and sworn to before me this 28th day of January, 1909. W. C. Doggett, Clerk of the Circuit Court."

The defendant had previously been given a preliminary examination before a justice of the peace. At the February term, 1909, the defendant was duly arraigned. At the June term, 1909, of the circuit court of Crawford county, the defendant was put upon his trial before a jury duly impaneled, and under the evidence and instructions of the court was convicted of manslaughter in the third degree, and his punishment assessed at three years' imprisonment in the penitentiary. From the sentence imposed on that verdict, he has appealed to this court. The testimony tended to establish these facts. The deceased, Arthur Huitt, was an unmarried man who resided with his father, J. T. Huitt, in Crawford county, about three miles from Davisville. On Sunday, the 15th of November, 1909, the deceased and one Wisdom left his father's home about 3 or 4 o'clock in the afternoon, and went to Davisville to attend religious services, in a schoolhouse in that village. At Davisville they met three other young men, Gregory, Green, and Davis, and among them they had a quart of whisky, of which they all drank. That night they all went into the schoolroom where the services were being held. About the closing of the sermon, the deceased, the defendant, and other young men left the room, and went out into the yard in the front of the schoolhouse, where the general row ensued, resulting in Davis getting his throat cut and the deceased, William Arthur Huitt, receiving two licks from a round club about four or five feet long and two inches thick, in the hands of the defendant, Hanson. Various witnesses detailed their knowledge of the difficulty. It was dark in the schoolyard, the only light being that which came through the door, from the room, and two or three lanterns. Arthur Wisdom testified that he saw deceased and defendant at church that night; deceased was standing out in front of the door, and defendant and Walter Davis came out in front of deceased. One McGeethen came out and kicked a club lying on the ground, and defendant said, "That's Arthur Huitt's," and deceased said, "No, I ain't had no club tonight," and McGeethen went on and kicked another club and said, "Here's another one," and defendant said, "That's Arthur Huitt's," and Arthur said, "You are a liar, I never had any club;" whereupon defendant ran up and said, "Don't you call me a liar," and struck him across the head with a club. Witness did not see deceased doing anything, and did not see anything in his hands. The lick knocked Huitt down, and some one helped him up. Deceased was about eight or nine feet from defendant just before he was struck, and was about four and a half feet from him, when he was struck. When they helped Huitt up, witness took him home, horseback. When they reached his home, witness helped him off of the horse and laid him on the ground, and the parents of deceased helped take him in the house. When they started home Huitt, the deceased, got on his horse without any help from witness. George Gregory rode behind deceased and Charles Green behind witness. Ike Cassidy corroborated the testimony of Wisdom, but added that Huitt, the deceased, was advancing slowly toward defendant, when defendant struck him the first lick. He was about three feet from him when he hit him. He heard deceased call defendant a liar, and defendant struck him a light lick. Heard defendant say to deceased, "Stand back! Stand back!" Defendant had nothing in his hands when he first noticed him. He saw Huitt afterwards near the defendant, and heard him call defendant a damn liar. Heard some one say, "Damn you, I'll kill you," but did not know who it was.

Mrs. Joseph Peak testified that she heard defendant say after church that he got the...