State v. Jennings

• Decision Date: 31 July 1853
• Citation: 18 Mo. 435
• Parties: THE STATE, Respondent, v. JENNINGS, Appellant.
• Court: Missouri Supreme Court

18 Mo. 435

THE STATE, Respondent,

v.JENNINGS, Appellant.

Supreme Court of Missouri.

July Term, 1853.

1. In a criminal case, the supreme court will not reverse because irrelevant evidence was allowed to go to the jury, if it could not have prejudiced the accused.

2. Every deliberate and intentional homicide is murder in the first degree.

3. One good count in an indictment will support a general verdict, no matter how many defective counts there may be.

Appeal from Buchanan Circuit Court.

Hayden, for appellant.

I. No sufficient foundation was laid for the admission of the threats of Copeland. There was no proof of a previous conspiracy or confederacy to perpetrate the outrage upon Willard. (3 Chitty's Criminal Law, p. 1143 and the following authorities referred to; 1 Phillip's Ev. 88; 2 Starkie's Ev. 141; Commonwealth v. Crowninshield, 10 Pick. 497; 1 Greenleaf's Ev. §§ 110, 111; 2 Peters, 364.)

II. The first instruction given for the State is erroneous. The assistance and aid must have been willful, deliberate and premeditated on the part of Jennings. The instruction does not exclude the idea that the aid and assistancc might have been such as would not make the defendant guilty of murder.

III. The second instruction given for the State is wrong. Malice must have existed not only at the time of, but before the killing.

IV. The third and fifth instructions given for the State are wrong, because there is no evidence to sustain them.

V. The sixth instruction is contrary to the principle decided in Bower v. The State. (5 Mo. 379, 380.)

VI. The defendant's first, second and third instructions ought to have been given. Also the fourth. “Whipping,” as that word is used in common parlance, is a misdemeanor and not a felony. His fifth and sixth instructions also should have been given. The instruction given by the court, on its own motion, does not cure the errors.

VII. The judgment ought to have been arrested, because it does not appear upon which count in the indictment the jury found a verdict.

Gardenhire, (attorney general,) for the State.

I. The verdict is supported by the law and the evidence. The evidence applied to the law, as given by the court, presents a clear case of murder in the first degree.

II. The testimony admitted by the court was proper. Where several persons are proved to have combined together for the same illegal purpose, any act or declaration of one is evidence against all. (1 Phillips on Ev. 94, 95; Cowen & Hill's notes, p. 176 and following.)

III. The instructions given contain a fair exposition of the law applicable to the whole case, and the appellant could not have been injured by the refusal of those asked by him.

IV. The judgment cannot be arrested for the failure of the jury to specify, in their verdict, upon which count it was found. (R. C. 1845, 869, sec. 17, fourth clause.)

V. A general verdict, though all the counts are bad but one, is sufficient. In this respect, there is an essential difference between civil and criminal cases. (1 Chitty's Crim. Law, 639; Hudson v. The State, 1 Blackf. 319.)

RYLAND, Judge, delivered the opinion of the court

The defendant, Augustus Jennings, was indicted with William Langston, David Jones and Burr Anderson, for the murder of one Edward H. Willard, at the November term of the Circuit Court for Buchanan county in the year 1852.

At the March term of said Circuit Court, in the year 1853, the defendant, Jennings, was tried separately, and was found guilty of murder in the first degree. He moved for a new trial, assigning therefor the usual reasons, which was refused. He then moved in arrest of judgment, which motion being overruled, the defendant excepted, and filed his bill of exceptions, prayed for an appeal, which was allowed, and brings the cause before this court.

The principal matters assigned here, and relied upon for a reversal of the judgment of the court below, are the admission of illegal and improper evidence, and the giving and refusal to give instructions to the jury as to the law of the case. The evidence shows that the killing of Willard was in a most cruel manner. He was tied to a tree and whipped to death. It may be seen from the evidence preserved in the record, that this act was in the course of perpetration some five or six hours--from eight or nine o'clock in the morning, until two or three o'clock in the afternoon of the 27th day of July, in the year 1852, within a short distance of the city of St. Joseph, in Buchanan county. On the morning of the day Willard was killed, the defendant, Jennings, in company with Langston, Anderson and Willard, and probably another, were seen going up towards the graveyard, near the town of St. Joseph--Jennings having previously purchased a cow hide and rope.

The day before Willard was killed, many threats were made at a public gathering at the railroad depot, in St. Joseph, about whipping him. There was an auction at the depot; at this auction, Willard was present and bid for some article; upon his bidding arose the conversation or remarks of a man named Copeland, which were given in evidence by the witness, James A. Owen, and which form the ground of the principal objection to the evidence offered in the case, on the part of State by the defendant.

1. The objection to the giving of the remarks of Copeland in evidence, has more weight than any other taken, and should this be overruled, it will not be necessary to notice the rest, as the whole of the objections depend upon the same principle. It will be necessary, therefore, to notice this particularly. The witness, James A. Owen, said: “I was at the railroad depot on the 26th day of July--the day before Williard was killed. I did not see the difficulty between Harding and Willard. There were many threats made there, such as cowhiding his guts out. Langston stated that he had a cowhide at home that would make the wine come. Copeland was in a great rage. In a loud voice Copeland charged him with being a swindler, that he ought to have his guts lynched out. Willard bid for some article, and Copeland turned around and said to him, “have you got the money for it?” Willard replied, “I have.” Copeland then said, “God damn him, if it was not for the law I would murder him;” “that he ought to be lynched to death.” I heard Copeland charge that Willard had seven hundred dollars hoarded up at home. Witness did not hear Jennings say anything. Witness says that when the threats were made, his best impression is, that Jennings was on the ground. Next day, saw Willard dead in the bushes, near the grave-yard; examined the red-bud tree; found marks upon the tree about as high as a man's face. The testimony objected to, commences with the word “““threats,” and ends with the word “home.” Copeland was not one of the persons indicted. His remarks, therefore, were not properly evidence, and on objections urged, they should have been rejected; but they could not operate to the prejudice of the defendant, however they might to the prejudice of the State. The natural effect of these remarks of Copeland was to induce the jurors to believe that the deceased was deserving of some great and severe punishment, and to palliate the charge against the defendant. This court cannot see how it was possible to prejudice the jurors against the accused. The circuit attorney might have interfered and objected to such evidence, because its obvious tendency was to create an unfavorable impression against the deceased, and in favor of the defendant; and for such evidence, though irrelevant, where no injury or harm could be done to the prejudice of the accused, this court will not reverse.

It was proper and competent to offer the threats of Langston, and of the other persons indicted, showing a common design to do the injury.

In looking over the record of the proceedings of the Circuit Court, I find the evidence of the witnesses all given once before the jury, without any objection or exception by the defendant; and in another part of the record. I find the same testimony of the witnesses again set down, and objections and exceptions taken to it. I have looked at the evidence as though it had been excepted to, and our opinion is, that the exceptions cannot be maintained. There is no error, then, in the admission of the evidence in this case.

It is not deemed necessary to spread out the whole evidence in this case in the opinion; such facts though, as may show that the jury have come to a proper conclusion, may not be improperly here set forth.

The testimony shows that Willard was whipped to death; that this whipping was continued several hours; that the defendant was one of the persons concerned and engaged in this whipping; that, while the parties were engaged in this business, one of them went to Willard's house, with an order from him to his wife for seventy-five dollars; that she was told it would be better to raise the money. None was obtained, and the party went back again towards the grave-yard; that on the day Willard was killed, between nine and twelve o'clock in the forenoon, Jennings, the defendant, went two or three times to a tavern for...