State v. Hudspeth

• Decision Date: 23 May 1899
• Citation: 51 S.W. 483,150 Mo. 12
• Parties: STATE v. HUDSPETH.
• Court: Missouri Supreme Court

51 S.W. 483

150 Mo. 12

STATE v. HUDSPETH.

Supreme Court of Missouri, Division No. 2.

May 23, 1899.

INDICTMENT — GRAND JURY — CHANGE OF VENUE — PREJUDICE — CRIMINAL LAW — RES GESTÆ — INSTRUCTIONS — HOMICIDE — SELF-DEFENSE — DUTY TO FLEE — EVIDENCE — JURY — CHALLENGES — TIME TO MAKE.

1. The conclusion of an indictment need not restate the time or place of the commission of the offense.

2. An indictment will not be quashed because the names of the special grand jury which indicted defendant were handed to the marshal by the regular judge of the criminal court, because an attempt to challenge the array on a ground not within Rev. St. 1889, § 4067, which limits the grounds therefor, and which also requires the challenge to be before the grand juror is sworn.

3. Ten persons testified as to prejudice, on a motion for a change of venue. Three or four of them merely testified to statements that defendant ought to be punished if the newspaper articles were true. The remainder testified to a well-divided sentiment as to defendant's guilt. Two newspapers, whose circulations in the county were, respectively, 18,000 and 42,000 daily, had commented on the homicide, giving various versions, and criticising courts, grand jurors, and juries generally. The county has a population of over 200,000, and no adverse criticism was shown in seven of the townships. Held, that it was proper to refuse a change of venue.

4. Defendant and the deceased had had trouble shortly before the killing. After such trouble the deceased had a shotgun in his hands, and was asserting that he would kill defendant as soon as he could get some shells, but the wife of deceased got the gun away from him. Shortly afterwards the parties met again and quarreled, and the deceased picked up two scale weights, whereupon defendant shot him. In not more than two minutes a witness heard the deceased, lying where he fell, say to his wife, "If you had not taken the gun from me, it would have been different." Held, that the statement was admissible as a part of the res gestæ.

5. It was error to instruct that, if the jury believe any statements of defendant have been proved by the state and not denied by defendant, they are to be taken as true, as in violation of the presumption of innocence, and abrogating the efficacy of Rev. St. 1889, §§ 4218, 4219, permitting a defendant to refrain from testifying without raising a presumption of guilt.

6. Deceased on the day of the homicide told defendant that he (deceased) would kill him. Deceased afterwards got his gun, and was heard to swear he would kill defendant. Defendant then armed himself and sat down in front of a store. Deceased approached and began cursing defendant, and went into the store, and came out armed with two scale weights, again cursing defendant and making a motion to throw, according to some of the evidence, when defendant, standing 10 or 15 feet away, shot and killed the deceased. Held, that it was not the duty of defendant to flee, though he could have done so safely, in order to be justified on the ground of self-defense.

7. Evidence of the act of defendant, on the day of the killing, in sending a messenger for a mutual friend to come and make peace between himself and the deceased, was not part of the res gestæ, where the deceased was not advised of the act, and where it did not affect defendant's right of self-defense, inasmuch as such defense was not based on his own efforts to adjust the difficulty.

8. Where defendant denied the writing of an anonymous letter causing the trouble with the deceased, evidence of certain facts offered to show the occasion therefor was inadmissible.

9. Ten minutes in which to make defendant's challenges to the jury in a murder case is an unreasonable allowance.

10. Mere words, however opprobrious or insulting, cannot justify a killing.

11. An instruction based on an hypothesis not supported by any evidence is properly refused.

Appeal from criminal court, Jackson county; D. W. Shackelford, Special Judge.

J. Lamertine Hudspeth was convicted of murder in the second degree, and he appeals. Reversed.

B. L. Woodson, J. N. Southern, and Wallace & Wallace, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, Asst. Atty. Gen., for the State.

GANTT, P. J.

At the September term, 1897, the defendant was indicted for the murder of Josiah W. Kesner in Jackson county, Mo., on the 17th day of May, 1897. The defendant was duly arraigned, and entered his plea of not guilty. The cause was tried in June, 1898, and resulted in a verdict of guilty of murder in the second degree. From the sentence on that conviction, defendant appeals. Various errors are assigned.

The indictment is as follows: "State of Missouri, County of Jackson — ss.: In the Criminal Court of Jackson County, at Kansas City, September Term, 1897. The grand jurors for the state of Missouri, in and for the body of the county of Jackson, upon their oath present that J. Lamertine Hudspeth, whose Christian name in full is unknown to these jurors, late of the county aforesaid, on the 14th day of May, 1897, at the county of Jackson, state of Missouri, then and there being, in and upon one Josiah W. Kesner, then and there being, feloniously, willfully, deliberately, premeditately, on purpose, and of his malice aforethought, did make an assault, and with a dangerous and deadly weapon, to wit, a certain double-barrel shotgun, then and there loaded with gunpowder and leaden balls, which he, the said J. Lamertine Hudspeth, in both his hands, then and there held at and against him, the said Josiah W. Kesner, then and there feloniously, willfully, deliberately, premeditately, on purpose, and of his malice aforethought did shoot off and discharge, and with the double-barrel shotgun aforesaid, and with the gunpowder and leaden balls aforesaid, then and there feloniously, willfully, deliberately, premeditately, on purpose, and of his malice aforethought did shoot and strike him, the said Josiah W. Kesner, in and upon the head and neck of him, the said Josiah W. Kesner, then and there with the dangerous and deadly weapon, to wit, the double-barrel shotgun aforesaid, and the gunpowder and leaden balls aforesaid, giving to him, the said Josiah W. Kesner, in and upon the head and neck of him, the said Josiah W. Kesner, one mortal wound, of which mortal wound aforesaid he, the said Josiah W. Kesner, from the 14th day of May, A. D. 1897, until the 17th day of May, A. D. 1897, in the county of Jackson and state of Missouri, did languish, and languishing did live, on which said 17th day of May, A. D. 1897, the said Josiah W. Kesner, in the county of Jackson and state of Missouri, of the mortal wound aforesaid died. And so the grand jurors aforesaid, upon their oath aforesaid, do say that the said J. Lamertine Hudspeth, him, the said Josiah W. Kesner, in the manner and by the means aforesaid, feloniously, willfully, deliberately, premeditately, on purpose, and of his malice aforethought did kill and murder, against the peace and dignity of the state."

This indictment is challenged on two grounds. The first objection relates to the form of the conclusion, because it states neither the time nor the place of the commission of the offense. The point is not well taken. It was not essential to restate the time or the place in the conclusion. That is not the office of a conclusion. The time and place having been already stated, says Chitty in his Criminal Law (volume 3, p. 737), "the indictment must draw the conclusion that so the prisoner, the defendant, feloniously, etc., did kill and murder." The form used in this case is the same approved in Heydon's Case, 4 Coke, 41b. 3 Chit. Cr. Law, 750; Whart. Hom. § 849; Rex v. Nicholas, 7 Car. & P. 538. The case of State v. Meyers, 99 Mo. 107, 12 S. W. 516, does not support the contention of counsel. The defect in that indictment was the failure to charge that "so grand jurors upon their oath do say that the said," etc. The omission of the italicized words was the error in that case, and not the failure to allege either time or place.

The indictment is also attacked because it is alleged that the names of the special grand jury which indicted defendant was handed to the marshal by the regular judge of the criminal court. This was one of the grounds in the motion to quash. This is in fact an attempt to challenge the array. By positive enactment the legislature has limited this right to the instances enumerated in section 4067, Rev. St. 1889. It is provided in said section that the competency of a grand juror may be challenged before he is sworn, on one of two grounds, — either that he is prosecutor or complainant, or that he is a witness on the part of the prosecution, and has been summoned or bound in a recognizance as such. It follows that the objection, coming after the finding of the indictment, was too late, and, if seasonable, was not one which the law would recognize. No error was committed in overruling the motion to quash, as to this ground. State v. Holcomb, 86 Mo. 371.

2. Proceeding in the natural order, we must next determine whether error was committed in denying defendant a change of venue. The present statute governing changes of venue has been so recently reviewed in this court, in State v. Goddard (Mo. Sup.) 48 S. W. 82, that it is deemed unnecessary to repeat at length what was said in that case. We still hold that where the defendant, in addition to his own affidavit and that of two supporting witnesses, makes out a prima facie case of prejudice of the inhabitants of the county against him, and his witnesses are not impeached either by cross-examination or by evidence aliunde or direct impeachment of their veracity, and the state offers no rebuttal, he is entitled to a change of venue. That case is invoked to reverse the trial court in this case. Each of these applications depends upon the peculiar facts developed. It has been uniformly held that the trial...