State v. Inks
| Decision Date | 20 November 1896 |
| Parties | The State v. Inks, Appellant |
| Court | Missouri Supreme Court |
Appeal from Holt Circuit Court. -- Hon. C. A. Anthony, Judge.
Affirmed.
H. S Kelley, L. R. Knowles, and John H. Kennish for appellant.
(1) The indictment is insufficient in not charging that the assault was deliberately made. (2) The court erred in overruling the application for a continuance. State v. Anderson, 96 Mo. 241; State v. Wood, 68 Mo. 444; State v Scott, 44 Iowa 93; People v. Anderson, 53 Mich 60; State v. Dakin, 52 Iowa 395; State v. Hagan, 22 Kan. 490; Petit v. State, 135 Ind. 393; Howell v. State, 5 Ga. 48; Madox v. State, 32 Ga. 581; Polite v. State, 78 Ga. 347. (3) The court erred in its eighth instruction in that it told the jury The clause referred to was unnecessary and operated to influence the jury to find the defendant guilty in that degree by relieving them of all responsibility for the defendant's death. (4) The court erred in refusing to instruct upon manslaughter, and in refusing to give the instructions on manslaughter in the third and fourth degrees requested by defendant. The court is the judge of the grades or degrees of homicide which the evidence tends to prove. State v. Turlington, 102 Mo. 642; State v. Lewis, 118 Mo. 79. (5) But when there is any evidence upon which to base an instruction, it is not the privilege of the court to pass upon its credibility, even though it may conflict with the physical facts. It is the sole province of the jury to determine whether the testimony of any witness is true or false, and what the facts may be in the given case. (6) Therefore, when the defendant testifies instructions predicated upon his evidence should be given. State v. Talmage, 107 Mo. 543; State v. Brown, 104 Mo. 365; State v. Palmer, 88 Mo. 568; State v. Banks, 73 Mo. 592; Nicholas v. Winfrey, 79 Mo. 544. (7) And if the instructions asked be imperfect, and are for that reason refused, the court should give proper ones on the points intended to be submitted. State v. Patrick, 107 Mo. 147; State v. Taylor, 118 Mo. 153; State v. Luke, 104 Mo. 563.
R. F. Walker, attorney general, and G. W. Murphy for the state.
(1) The indictment in this case is sufficient. It clearly charges the crime of murder in the first degree and acquaints the defendant with the charge he is required to meet. It charges the assault, shooting, and killing of the deceased to have been done feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought. State v. Fairlamb, 121 Mo. 127. (2) Objection is made in the motion for new trial and it is presumed will be urged in the briefs filed here to the instructions given upon the part of the state. This court will find upon reading the bill of exceptions that no exceptions were taken or complaint made at the time the state's instructions were given; this being true, the defendant will not be heard to complain. (3) It is also contended that the court failed to declare the law applicable to the case. It is sufficient to say that no exceptions were saved to the failure of the court to so instruct the jury. State v. Nickens, 122 Mo. 611; State v. Paxton, 126 Mo. 500; State v. Nelson, 33 S.W. 809. (4) The application of the defendant for a continuance was properly overruled. It in no way complied with the statute nor did it contain facts sufficient to warrant continuing the cause. (5) The court instructed the jury as to murder in the first degree, but properly declined to instruct the jury upon the law of self-defense and as to manslaughter in any of the degrees. The testimony in this case showed conclusively the crime of murder in the first degree; nothing more and nothing less. The defendant's testimony, if taken and admitted to be true, would have warranted neither an instruction as to manslaughter or self-defense. The most it did or could do was to suggest the possibility of murder in the second degree. State v. Fairlamb, 121 Mo. 127; State v. Kloss, 117 Mo. 591.
The defendant was indicted on the twenty-seventh day of August, 1895, for murder in the first degree. He was duly arraigned on the twenty-ninth day of August, 1895, and on his application the cause was continued until October 28, 1895. On the twenty-ninth of October a second application for continuance was overruled and the jury ordered for November the fourth, at which last date the panel of forty was selected and the statutory time awarded to each side for challenges and on November 5 the panel of twelve was selected and the trial proceeded, resulting in a verdict for murder in the first degree. From that conviction this appeal is prosecuted.
The evidence developed the following facts:
The defendant and his wife and children during the winter of 1895 occupied a house in the town of Maitland which belonged to the deceased, John Patterson. In March, 1895, defendant and his family were ejected from the house in a landlord's action for failure to pay the rent. There was evidence that at the time his family were put out of the house defendant threatened to get even with deceased, but defendant and the constable testified to such a state of facts that this threat might have been directed to the constable alone. To the son of deceased, the defendant, about the same time, said: "See, isn't that a d shame, a woman and children to be turned out like this?" "This isn't the end of it; he'll pay d dear for it."
On the fifteenth day of May, 1895, John Patterson, the deceased, accompanied his wife to Mound City, at which point she was to take the train for Denver, Colorado. On their way to the railroad station they passed the defendant who stopped Patterson and said he wanted to speak to him, whereupon Patterson told him he was taking his wife to the train and had not time to see him then but would later. It further appears in the evidence that after defendant learned of the presence of Patterson in Mound City he attempted to hire a gun in Harvey's gun shop but failed. He then went to the hardware store of Parker & Harvey and was seen looking into a show case containing revolvers. After the shooting it was discovered that he had abstracted one of the revolvers and the pistol with which he shot Patterson was identified as the one he had thus surreptitiously taken from the show case. Defendant afterward in his own testimony confessed to have taken the revolver without the knowledge of the proprietors of the store. His explanation of why he got it is in these words: "Well after my wife told me what she did I was terribly worked up over it and knowing Mr. Patterson was a big man and rough I didn't know what he might do and I didn't carry it with any intention of killing him but to protect myself so I presented the gun to him if he didn't undertake to hurt me."
After arming himself with this revolver the defendant awaited the return of Patterson from the station, and a short time after the departure of the train he encountered him on the street near Whelty's store. They were seen to go into a saloon together in company with several others. They took a drink and according to defendant's testimony he paid for the drinks though he says it was not his intention to pay for Patterson's. Coming out of the saloon the party separated, leaving Patterson, the deceased, and Inks, the defendant, alone. Soon after coming out of the saloon and while walking together defendant was heard by Mr. Dillon, a merchant, to say to deceased, "You'll have to settle that this morning." "You'll have to go down and settle that with her this morning." And then a few steps further, defendant said, "We'll settle it right here," at the same time drawing his revolver and placing it nearly in Patterson's face. Patterson endeavored to catch the revolver but defendant wrested it from his hands and fired, the ball passing through Patterson's heart. He walked a few steps, fell, and expired instantly. Whereupon defendant standing near the prostrate form of deceased said: "I told you I would do it and I have done it."
Another eyewitness of the tragedy, Mr. Martin, says he saw Inks, the defendant, and Patterson come out of the Racket store and walk down the street, Patterson slightly in advance of Inks. When they reached a point nearly opposite the saloon, Inks slapped Patterson on the shoulder and stopped him and said "By G-d we can settle it in less than a minute," and reached into his hip pocket and drew his revolver. Patterson stood looking at defendant perhaps ten seconds and attempted to grab the pistol with both hands but soon let loose and Inks drew his arm back and shot him.
Another witness, McKee, heard the defendant say when he surrendered the pistol to Mr. Moore after the shooting, "I am the man that done the killing and I am not sorry for it." To Mr. Parrish, one of the guards who took him to Oregon to jail, the defendant said, "I killed the man; if I hadn't I wouldn't have done what I intended to do." He further said to these officers, "While he was marshal there they paid him a dollar for killing dogs and he did this (killing) with as good a grace as he did that." He said "he did it because he (Patterson) had insulted his wife and family." He was not excited when he made these statements.
Mr Cochran thought defendant placed the time of the alleged insult about three weeks before the killing. Mr. Alkin fixed the time of the insult from one to two months from a conversation with defendant in the county clerk's office the day after he...
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