State v. Hendricks

• Decision Date: 17 March 1903
• Citation: 172 Mo. 654,73 S.W. 194
• Parties: STATE v. HENDRICKS et al.
• Court: Missouri Supreme Court

73 S.W. 194

172 Mo. 654

STATE v. HENDRICKS et al.

Supreme Court of Missouri, Division No. 2.

March 17, 1903.

CRIMINAL LAW—DYING DECLARATIONS—CORROBORATIVE STATEMENTS — ADMISSIONS — TRIAL—INSTRUCTIONS—ADMISSION OF EVIDENCE—APPEAL—BILL OF EXCEPTIONS.

1. Defendants in a murder trial requested an instruction requiring the state to establish defendants' guilt "so clearly and convincingly that the jury are convinced to a moral certainty" of their guilt, which instruction the court modified by substituting the words "beyond a reasonable doubt" for those quoted. Held, that this modification was proper.

2. Defendants, on trial for murder, requested an instruction that the jury, in ascertaining if the two defendants had a motive for the crime, consider all the "evidence in relation with the association, relations, and deportment toward each other" which the court gave after inserting the words "and the deceased" after "each other." Held, that this modification served to make it clear and less susceptible of being misleading.

3. Defendants asked an instruction on the sufficiency of evidence to warrant a conviction, requiring the state to prove their guilt "clearly and conclusively, to such a moral certainty that there is no reasonable theory upon which they can be innocent." The court modified this instruction by substituting the words "beyond a reasonable doubt" for those quoted. Held, that the change made was proper.

4. Defendants, on trial for murder, requested the court to instruct the jury that to them belonged the function of determining what weight, "if any," was to be given to the dying declarations of the deceased, if he had made any, which the court refused to do until it had stricken out the words "if any." Held, that this modification was proper.

5. An instruction that, to warrant a conviction upon circumstantial evidence alone, the testimony must be such that it is not only altogether "inconsistent with the theory of the defendants' guilt, but utterly and absolutely inconsistent with any reasonable theory of their innocence," was properly refused, where the court of its own motion gave an instruction defining direct and circumstantial evidence, and instructing the jury that, to prove a crime by circumstantial evidence, "the facts and circumstances in evidence should be consistent with each other and with the guilt of the defendants, and inconsistent with any reasonable theory of defendants' innocence."

6. Where there was some testimony in a murder trial in regard to verbal statements and admissions made by defendants, they were entitled to an instruction as to the consideration of this testimony.

7. Though an instruction as to admissions, asked by the defendants, was properly refused by the court, it being improperly worded, yet the court should have given a correct one, and its failure so to do was reversible error.

8. In considering the dying declarations of a deceased, the jury are not to be governed by the same rule of caution that applies to the consideration of repetitions by witnesses of statements made by defendants, accused of his murder.

9. In the trial of persons accused of murder, only dying declarations of the deceased should be admitted, and to the jury should be submitted the question whether the declarations were in fact made.

10. Unless exceptions to the trial court's rulings on the admission of evidence appear in the bill of exceptions, they will not be considered on appeal.

11. Statements made by the victim of a homicide, at a time he believed death was impending and had no hope or expectation of recovery, are admissible as his dying declarations, though he lived some time afterwards.

12. The victim of a homicide, who was attacked near his home, struggled to his feet and walked through a gate into his house, where his wife met him and asked, "What is the matter?" To this he answered, "They have made their threat good," and said that the accused had pounded him, and narrated minutely how he reached the place where the assault was made, and all that was done by the accused and himself. Held, that these statements were not admissible as a part of the res gestæ, being merely a narrative.

13. Statements of a victim of a homicide, other than his dying declarations, are not admissible in corroboration of his dying declarations.

Appeal from Circuit Court, Caldwell County; J. W. Alexander, Judge.

Simon Hendricks and Jacob Hendricks were convicted of manslaughter in the fourth degree, and they appeal. Reversed.

On the 10th of July, the grand jury of Caldwell county, Mo., returned an indictment against the defendants for murder in the second degree. They were charged in that indictment with having killed one William C. Hipes on the 29th day of September, 1900. The defendants were jointly indicted and jointly tried. The first trial resulted in a hung jury. The second trial resulted in the conviction of both defendants of manslaughter in the fourth degree, and their punishment, assessed separately, at imprisonment in the penitentiary for a period of two years.

The facts, briefly stated, are these: On the evening of the 29th of September, 1900, the deceased was shopping in the business part of the town of Kidder, and at an early hour of evening started home. The defendants were observed in town at about that hour, and one of them was seen to look through a window into a store where deceased was at that time. Before the deceased had reached his residence he was assaulted and knocked down by two men. A young lady, whose home was situate on the street just opposite the place of the occurrence of the assault, heard the deceased say, "Why do you jump on me?" And she saw two men strike the deceased, who was doing what he could to defend himself. She heard an unknown voice say, "Take him off." But she was unable to identify the person making this remark, as well as unable to identify the two men making the assault. After a considerable struggle between the parties another nearby window was raised, and the noise attracted the attention of the two men, and they ran away. The evidence shows that, when the deceased reached his home, his ears and nose were bleeding, and he had a wound on his head. It further shows that he, immediately on reaching his home, told his wife that Jake and Simon Hendricks were the parties who had beaten him. The deceased never recovered from the assault. It is shown that he complained continuously thereafter about a pain in his head, and that he died in June, 1901. A post mortem examination revealed the fact that there was a small abscess on the outside of the skull in the locality of the wound, and a much larger abscess on the inner side of the skull and immediately under the place where the blow was struck. It is shown that this abscess had suppurated, and afterwards saturated the brain. The testimony on behalf of the state tended to show that death was due to this abscess, and that the wound was the immediate cause of the abscess. It was also testified by one of the witnesses that on the morning after the deceased had been assaulted, the defendant Jake Hendricks was observed riding past the home of the deceased, and that he turned from the roadway, and that he closely scrutinized the ground where the assault occurred, as if looking for some lost article. It was further shown that during the afternoon of the same day both defendants were seen riding slowly by the home of the deceased, and one of them rode out of the main traveled road and closely scrutinized the ground in the locality where the assault was committed, as if seeking something lost. The other defendant kept on the main road. On the Monday morning following the assault it was discovered that the defendant Simon Hendricks had an injured hand, and that it was injured to such an extent that he was compelled to consult a physician for its treatment. The dying declarations of the deceased were introduced in evidence. The defendants, on their part, offered much testimony tending to show that the deceased had on frequent occasions declared that he was ignorant as to who made the assault on him and that he was unable to identify such persons. And the state, in rebuttal, offered testimony to substantiate the dying declarations. There was other testimony by defendant tending to show that they were not present at the time deceased was assaulted. The assault, from which it is charged that the victim in that case died, was committed on the 29th of September, 1900, and the deceased died on the 22d day of June, 1901.

As appellants challenge the correctness of the indictment, we will insert it, omitting the caption:

"The grand jurors for the state of Missouri summoned from the body of Caldwell county, impaneled, charged, and sworn, upon their oaths present that Simon Hendricks and Jacob Hendricks, late of the county aforesaid, on the 20th day of September, 1900, at the county of Caldwell, state aforesaid, then and there being, in and upon one William C. Hipes, then and there being, feloniously, willfully, premeditatedly, on purpose, and of their malice aforethought did make an assault, and with a dangerous and deadly weapon or weapons to these jurors unknown, which they, the said Simon Hendricks and Jacob Hendricks, then and there had and held in their hands, and against him the said William C. Hipes, then and there feloniously, willfully, premeditatedly, and of their malice aforethought did strike and beat with the dangerous and deadly weapon or weapons aforesaid, then and there feloniously, willfully, premeditatedly, on purpose, and of their malice aforethought did strike, wound, and bruise him, the said William C. Hipes, in and upon the head and face of him, the said William C. Hipes, then and there, with a dangerous and deadly weapon or weapons aforesaid, giving to him, the said William C. Hipes, in and upon the head and face of him, the said William C. Hipes, several mortal wounds, of which mortal wounds...