State v. Hopkirk

• Decision Date: 31 October 1884
• Parties: THE STATE v. HOPKIRK, Appellant.
• Court: Missouri Supreme Court

84 Mo. 278

THE STATE

v.HOPKIRK, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Henry Circuit Court.--HON. JAS. B. GANTT, Judge.

AFFIRMED.

W. S. Shirk, Fyke & Calvird, Boone & Casey, and N. K. Chapman, for appellant.

(1) The plea in abatement should have been sustained. R. S. secs. 1732, 1736, 1738, and 1742; State v. Bailey, decided by supreme court of Kansas, May, 1884. (2) The court erred in overruling defendant's application for change of venue. Reed v. State, 11 Mo. 379; Corpenny v. Sedalia, 57 Mo. 88. (3) The court erred in permitting the panel of forty to separate and go to their homes pending the challenges. (4) The court erred in admitting the confession of defendant testified to by the witnesses Cason and Bartlett. Hestex v. State, 2 Mo. 166; State v. Brockman, 46 Mo. 566; Com. v. Taylor, 5 Cush. 605; Miller v. State, 40 Ala. 54; Jordan v. State, 32 Miss. 382; State v. Patterson, 73 Mo. 695. (5) The court erred in admitting the testimony of Hormeyer, for the reason that the former statements of defendant were not voluntarily made, and the presumption arose that all subsequent statements were involuntary until shown by the state to be otherwise. State v. Jones, 54 Mo. 478; Love v. State, 22 Ark. 336; Bob v. State, 32 Ala. 560; Joe v. State, 38 Ala. 422; Porter v. State, 55 Ala. 95; People v. Jim Ti, 32 Cal. 60; State v. Chambers, 39 Iowa 179; Peter v. State, 12 Miss. 31; State v. Drake, 82 N. C. 592. (6) The court erred in admitting the testimony of the witness Oechsli as to defendant's statements in jail. Witness did not pretend to be able to detail the whole statement. The rule is, that unless the witness professes to be able to detail the substance of the whole confession, he will not be permitted to detail any portion of it. People v. Gelabest, 39 Cal. 663; Berry v. Commonwealth, 10 Bush (Ky.) 15; Earp v. State, 55 Ga. 136; People v. Ward, 15 Wend. 231. (7) The court erred in retaining Joseph White, Wm. Ogg, Frank Nash, P. N. Rice, John McGinnis, H. T. Burriss, L. C. Organ, Samuel B. McHenry, George Cook, and T. C. Hemphill on the panel of forty qualified jurors. Of these ten, four were on the jury that tried the case, to-wit: Wm. Ogg, P. N. Rice, L. C. Organ, and T. C. Hemphill. Defendant was entitled to a panel of forty jurors who had been found by the court to be qualified, etc. Sess. Acts 1881, p. 118; State v. Culler, 82 Mo. 623. (8) The court erred in admitting the testimony of Mrs. B. H. Wells as to the identity of the watch, and also in answer to the question, “who do you think it was?” (9) The court erred in giving instruction number three on the part of the state. Wilfulness, deliberation, premeditation, and malice aforethought must be proved as any other facts. It is not sufficient that the jury can satisfactorily and reasonably infer their existence. Nothing can be left to inference. (10) The court erred in giving instruction number eight, by which undue prominence is given to the alleged confessions and to the testimony of Cason, Bartlett, Oechsli, and Hormeyer. (11) The court erred in refusing defendant's instructions numbers two, four, nine and twelve.

D. H. McIntyre, Attorney General, for respondent.

(1) The court did not err in overruling the plea in abatement. (2) Nor did it err in overruling the application for change of venue, as it was not supported by the affidavit of two or more reputable persons as required by the statute. R. S. sec. 1877. (3) The jurors were all properly accepted. None of them had read the evidence taken before the coroner or committing magistrate, or talked with any of the witnesses. State v. Walton, 74 Mo. 270. (4) It was competent for Mrs. Wells to testify that the watch resembled her husband's. State v. Babb, 76 Mo. 501. (5) When a murder by violence and malice aforethought is charged the prosecution may show, as part of the res gestæ, that it was also done in the perpetration or attempt to perpetrate arson, robbery, rape, or burglary, as the fact may be. Such evidence would be legitimate for the purpose of establishing the ingredients of the crime. Mitchell v. State, 1 Tex. App. 194; Pharr v. State, 7 Tex. App. 472; Roach v. State, 8 Tex. App. 478. (6) Offenders have often been recognized by the voice and size, and the evidence of Mrs. Wells on this point was competent. Wills' Cir. Ev., top pp. 113, 114; King v. Brook, 31 St. Trials 1137; Whar. Cr. Ev., § 803 (8 Ed.); Com. v. Scott, 123 Mass. 234; Brown v. Com.,76 Pa. St. 316. (7) Putting witnesses under the rule is a matter of discretion with the trial court, and this court will not reverse a judgment because a witness is allowed to testify who has not been excluded from the court room. State v. Fitzsimmons, 30 Mo. 236; State v. Hughes, 71 Mo. 633. (8) The evidence of the confession of defendant was properly admitted. State v. Patterson, 73 Mo. 695; Kelsoe v. State, 47 Ala. 599. (9) The instructions given for the state were correct. State v. Ellis, 74 Mo. 207; State v. Talbott, 73 Mo. 347; State v. Wingo, 66 Mo. 181. (10) Defendant's third instruction was properly refused. The evidence is uncontradicted that the killing was done in the perpetration of a robbery and was, therefore, murder in the first degree. R. S., sec. 1232. At common law any homicide committed in the prosecution of a felonious intent was murder. “A shooteth at the poultry of B and by accident killeth a man; if his intention was to steal the poultry, which must be collected from circumstances, it will be murder, by reason of that felonious intent.” Foster's Crown Law, 258, 259. “If A come to rob B in his house or upon the highway, or otherwise, without any precedent intention of killing him, yet, if in the attempt, either without or upon the resistance of B, A kills B, this is murder.” 1 Hale's P. C., top p. 465. A homicide committed in the prosecution of a felonious intent, although the death ensued contrary to the design of the party, will be murder. 1 East's P. C., p. 255. “And it is a general rule, that wherever a man intending to commit one felony, happens to commit another, he is as much guilty as if he had intended the felony which he actually commits.” 1 Hawkins' P. C., chap. 29, § 11, p. 112. “And if one intends to do another felony and undesignedly kills a man, this, also, is murder.” 4 Blackstone Com. (Cooley) top p. 200. A homicide committed in the prosecution of any felonious intent being, therefore, murder at common law, remains murder under our statute, and is as much murder in the first degree as to arson, rape, robbery, burglary, and mayhem as though the statute read every homicide instead of murder. Sec. 1232, R. S. The statute has been so interpreted by this court. State v. Jennings, 18 Mo. 435; State v. Green, 66 Mo. 631. If several persons combine to commit a felony and a homicide be committed by one of them, although it was separate from the original design, it will be murder in all. U. S. v. Ross, 1 Gall. (U. S.) 624; State v. Shelledy, 8 Ia. 505; People v. Vasquez, 49 Cal. 560; Ib. 643; 1 East P. C. 259; Foster's C. L., p. 351. It is submitted that State v. Ernest, 70 Mo. 520, and State v. Hopper, 71 Mo. 425, holding a different doctrine, should be overruled. (12) The remarks of the special counsel for the state, assigned as error, were not improper. State v. Emory, 79 Mo. 461.

SHERWOOD, J.

The defendant, together with one Thomas Brownfield, was indicted for the murder of one John E. Wells, in Henry county, on Friday, the 29th day of February, 1884. The murder was committed at night, its motive being robbery. A severance was had and each of the indicted parties was accorded a separate trial, resulting in the conviction and sentence of each. Many points common to both cases were passed upon in Brownfield's case, already decided, and consequently will not be further noticed.

I. In relation to admitting certain persons to form the panel of forty, from which the petit jury was chosen, it is enough to say that of that number those who were objected to at the time the panel was being formed and exceptions as to their being accepted saved, none of them had formed their opinions except from minor talk in the neighborhood and newspaper reports; they, there fore, do not come within the rule laid down in Culler's case, 82 Mo. 623, and were competent to form the panel from which the jury was afterwards chosen. As to Hemphill, it is claimed he was a witness in Brownfield's case, and section 1896 of the statutes, is invoked, which provides that no witness in any criminal case shall be sworn as a juror therein, if challenged, etc. This section has no application to Hemphill. He was not a witness in the cause, knew nothing about it, and had only been summoned as a witness on Brownfield's application for a change of venue, but never sworn. As to Ogg, White, Nash, and Rice, no exceptions were saved as to their being placed on the panel. On this point, therefore, the ruling must be against the defendant.

II. The admissibility of the confessions will now be considered. In endeavoring to arrive at a correct conclusion on this point, considerable embarrassment has been experienced in reading the evidence, in consequence of the very poor fashion in which this transcript has been made out; capitals and punctuation are for the most part ignored, and sentences are telescoped into other sentences in utter disregard of all ordinary rules. The preliminary question of the admissibility of confessions, is one which belongs alone to the trial courts, and unless it be made plain that error manifest has been committed in this regard, in deciding the question of fact as to whether those confessions were made in circumstances which forbid their being received in evidence and going to the jury, the admission of such confessions cannot be held reversible error by this court. State v. Patterson, 73 Mo. 695. And the reason is obvious. It is just like the determination of any other preliminary question of fact by the court,...