State v. Henderson
| Decision Date | 21 February 1905 |
| Citation | 85 S.W. 576,186 Mo. 473 |
| Parties | THE STATE v. HENDERSON, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Charles Circuit Court. -- Hon. H. W. Johnson, Judge.
Affirmed.
Charles J. Daudt and William F. Achelpohl for appellant.
(1) The testimony of Mary Berkmeier, a material witness for the State, should not have been admitted, as her name was not endorsed on the information, although her testimony was known to the prosecuting attorney at the time he filed the information. State v. Stifel, 106 Mo. 133; State v. Nettles, 153 Mo. 469. (2) The court erred in failing to instruct the jury on the law of the whole case, and in refusing to give instructions particularly requested by defendant. (a) Defendant was entitled to an instruction to the jury cautioning them in the consideration of repetition by witnesses of alleged statements, admissions and confessions of defendant. State v. Glahn, 97 Mo 679; State v. Moore, 160 Mo. 460; State v Howell, 117 Mo. 335; State v. Hendricks, 172 Mo. 668; 1 Greenleaf, Ev. (14 Ed.), sec. 200. (b) Defendant was entitled to an instruction on murder in the second degree. In the absence of evidence to the contrary, an intentional killing with a deadly weapon is presumed to be murder in the second degree. State v. Young, 119 Mo 524; State v. Frazier, 137 Mo. 317; State v. Silk, 145 Mo. 240; State v. McMullin, 170 Mo. 630; State v. May, 172 Mo. 641. (3) The corpus delicti was not established. A conviction can not be based on the uncorroborated extrajudicial confession of a defendant. 1 Greenleaf, Ev., sec. 217; 1 Whart. Crim. Law, secs. 745-6; Wills, Circumst. Ev., sec. 6; Robinson v. State, 12 Mo. 592; State v. Scott, 39 Mo. 424; State v. German, 54 Mo. 526.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
The court gave nine instructions for the defendant and refused four, and in addition to those given for the defendant a number were given by the court of its own motion. The first instruction asked by the defendant and refused by the court was a comment on the testimony and properly refused. The other three were upon the question of murder in the second degree. No error was committed by the court in refusing instructions upon murder in the second degree, because there was no evidence to warrant such instructions. It has been universally held that trial courts should not give an instruction upon murder in the second degree or upon manslaughter when the evidence does not, under any circumstances, justify the same. The instructions on murder in the first degree were sufficient. State v. Grant, 152 Mo. 57; State v. Thomas, 78 Mo. 327; State v. Bryant, 93 Mo. 373; State v. Williams, 141 Mo. 316; State v. Bank, 73 Mo. 592; State v. Cushenberry, 157 Mo. 168; State v. Frazier, 137 Mo. 317.
From a conviction of murder in the first degree defendant appeals.
The prosecution was by information filed by the prosecuting attorney of St. Charles county, on September 7, 1903, charging that defendant, on the twelfth day of April, 1903, willfully, deliberately, premeditatedly and of his malice aforethought did make an assault in and upon one Joseph Buckner, and a certain shotgun then and there charged with gunpowder and leaden balls, then and there feloniously, willfully, deliberately, premeditatedly and of his malice aforethought, did discharge and shoot off, to, at, against and upon one Joseph Buckner, and that the said Allen Henderson, with the shotgun aforesaid, and the leaden balls aforesaid, out of the gun aforesaid, then and there by the force of the gunpowder aforesaid, by the said Allen Henderson discharged and shot off as aforesaid, then and there feloniously, willfully, deliberately, premeditatedly and of his malice aforethought, did strike, penetrate and wound him, the said Joseph Buckner, in and upon the right side of him, the said Joseph Buckner, giving to the said Joseph Buckner then and there with the deadly weapon, to-wit, the shotgun aforesaid and the leaden balls aforesaid, discharged and shot out of the shotgun aforesaid, by the said Allen Henderson in and upon the right side of the body of him, the said Joseph Buckner, one mortal wound of the depth of six inches and of the breadth of eight inches, of which mortal wound the said Joseph Buckner then and there instantly died.
It was further alleged that Price Edwards was then and there feloniously, willfully, deliberately, premeditatedly and of his malice aforethought present aiding, helping, assisting, comforting and maintaining the said Allen Henderson, the felony and murder aforesaid in the manner and form aforesaid and by the means aforesaid at the time and place aforesaid to do and commit. "And so Theodore C. Bruere, prosecuting attorney, aforesaid, upon his oath aforesaid, does say that the said Allen Henderson and Price Edwards, him, the said Joseph Buckner, at the time and place aforesaid, in manner and form aforesaid and by the means aforesaid, feloniously, willfully, deliberately, premeditatedly and of their malice aforethought did kill and murder, against the peace and dignity of the State."
A second count with the same technical precision alleged the murder to have been committed by pouring coal oil on the deceased and setting the same afire and burning him up with the building in which he was living at the time.
The information was duly verified. A motion to quash was filed and overruled. The defendant was duly arraigned and pleaded not guilty.
The evidence tended strongly to prove the following facts:
Joseph Buckner, an aged negro man, lived by himself in the country near Wentzville, in St. Charles county. His dwelling consisted of three rooms, two below and one above. On Easter, the twelfth day of April, 1903, some of his children visited him at his home, and that afternoon he went to the house of his son, William Buckner, and took dinner with William and his wife, Agnes. He left their home about five o'clock in the afternoon, in his usual state of good health, to return home. That night his house was totally destroyed by fire and his body consumed. Early next morning, his son William and his neighbors went to his home and discovered the charred remains of a human being in the ashes of the burnt building. The skull and trunk of the body were sufficient to show the form of a man and the metal portion of a knife he was known to carry was found by the body, and some metal buttons. From that day until the date of the trial in February, 1904, Joseph Buckner was never seen alive by any of his family.
It appeared that Price Edwards had married the daughter of Joseph Buckner, but the daughter had left Edwards and was not living with him at the time of the burning of her father's house; an unfriendly feeling existed between Edwards and the old man, Joe Buckner. Price Edwards lived about one fourth of a mile from the old man with his children. The evidence also established that the defendant Allen Henderson was in the habit of visiting Price Edwards frequently about the date of the homicide. That he and old Joe were at outs over the killing of Joe's dog by defendant.
There was evidence of threats made by the prisoner against deceased; that defendant had stated some weeks before the killing of old Joe that he had had trouble with the old man and had loaded his gun and revolver and had taken his razor and started to kill him, but he desisted, he said, because the Lord told him not to kill him. That some time in February, 1903, he said he intended to kill the old man just like he did his dog, and that pretty soon. To another witness, Johnson, he said he and the old man had had some words about a dog; that the old man accused him of killing the dog, and that he did shoot the dog. He said, "I will tell you, Johnson, that old man don't have to fool with me at all because I am going to kill him if it is the last thing I do." Johnson advised him not to kill him, but just whip him, to which defendant replied, "No, I am going to kill him before the snow is off, the night ain't got no eyes." "You will read in the papers about me before this snow goes off."
The evidence of Price Edwards' two daughters was, in substance, that on the day their grandfather's house was burned, their father, Price Edwards, left in the morning and went to Wentzville and returned in the afternoon; that, after he left, the defendant, Allen Henderson, came to their house about noon and one Bruz Costilo also came that day about noon. All these parties were negroes. Defendant and Costilo lolled around the house after dinner until Price Edwards returned late in the afternoon. About six o'clock in the afternoon the defendant, addressing Price Edwards and Costilo, said, The three left, Edwards saying he was going to Hubbard's. After they had been gone a few minutes, the defendant returned and got a shotgun and again left.
Later still, the defendant came back and got a can of coal oil that had been filled the day previous. About ten o'clock that night, Edwards and Costilo came back and took the children out to the edge of the field and they saw Joseph Buckner's house burning. Edwards saw it first. He heard the fire popping and said there was something afire. They went out and he said the old man's house was burning. Defendant also returned to the Edwards house with Edwards and Costilo after the fire began, but left immediately for his home some five miles distant. The evidence also tended to show that on Thursday before Easter defendant was at Edwards' house and a conversation between Edwards and defendant was detailed by Edwards' daughter. Defend...
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