State v. Long

• Decision Date: 05 March 1907
• Citation: 201 Mo. 664,100 S.W. 587
• Parties: STATE v. LONG.
• Court: Missouri Supreme Court

100 S.W. 587

201 Mo. 664

STATE v. LONG.

Supreme Court of Missouri. Division No. 2.

March 5, 1907.

1. HOMICIDE — INFORMATION — USE OF NEEDLESS WORD—EFFECT.

The needless use of the word "with" in an information for murder charging that defendant "with" a certain shotgun did shoot off against decedent, etc., did not make the information objectionable.

2. CRIMINAL LAW—EVIDENCE—SELF-SERVING DECLARATION.

Evidence for defendant in a murder trial of declarations made by him as to why he shot decedent, being not part of the res gestæ, was properly excluded.

3. WITNESSES — CROSS-EXAMINATION — COMMISSION OF CRIME BY WITNESS.

In a murder trial, it was not error to permit the state to ask a witness for defendant if witness had not committed a certain detestable crime, where he made no claim of privilege.

4. CRIMINAL LAW—INSTRUCTION—CLEARNESS.

In a murder trial, an instruction that if defendant "provoked the difficulty or began the quarrel" was clear enough to require no definition of the phrases "provoked the difficulty" and "began the quarrel."

5. SAME—MOTION FOR NEW TRIAL—MISCONDUCT OF JURY—ADMISSIBILITY OF EVIDENCE.

On motion for a new trial, evidence by jurors, tending to impeach the verdict for their own misconduct, was properly excluded.

6. HOMICIDE — MURDER—TRIAL—SUFFICIENCY OF EVIDENCE.

Evidence in a murder trial held to sustain a verdict of guilty in the first degree.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Dave Long was convicted of murder in the first degree, and he appeals. Affirmed.

Pierce & Reeves, for appellant. The Attorney General and Frank Blake, for the State.

GANTT, J.

On October 3d, 1905, the prosecuting attorney of Pemiscot county filed an information, charging the defendant with murder in the first degree of one C. C. Still, on the 1st day of October, 1905. The defendant was duly arraigned on the 22d day of November, 1905, and a plea of not guilty entered. A trial was had on the 24th of November, 1905, and the jury returned a verdict of murder in the first degree. The defendant was sentenced according to the verdict, and from that sentence has prosecuted his appeal in due form. The information, omitting caption, is in the following words:

"State of Missouri v. Dave Long.

"L. L. Collins, prosecuting attorney within and for the county of Pemiscot, in the state of Missouri, upon his official oath informs the court that Dave Long, late of the county of Pemiscot and state of Misouri, at and in the county of Pemiscot and state of Missouri, on the 1st day of October, 1905, did then and there, in and upon the body of one C. C. Still then and there being, feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought make an assault, and that the said Dave Long, with a certain shotgun then and there charged with gunpowder and leaden bullets, which said shotgun he, the said Dave Long, in his hands then and there had and held, then and there feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought did discharge and shoot off, to, against, and upon the said C. C. Still, and that the said Dave Long, with the leaden bullets aforesaid, out of the shotgun aforesaid, then and there, by force of the gunpowder aforesaid, by the said Dave Long discharged and shot off as aforesaid, then and there feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought did strike, penetrate and wound the said C. C. Still, in and upon the abdomen and near the navel of him, the said C. C. Still, giving to him, the said C. C. Still, then and there, with the leaden bullets aforesaid, so as aforesaid discharged and shot out of the shotgun aforesaid, by the said Dave Long, in and upon the abdomen and near the navel of him, the said C. C. Still, one mortal wound, of the depth of eight inches, and of the width of three inches, of which said mortal wound he, the said C. C. Still, then and there instantly died. And so L. L. Collins, prosecuting attorney as aforesaid, upon his official oath as aforesaid, doth say that the said Dave Long him, the said C. C. Still, in the manner and by the means aforesaid, feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought did kill and murder, against the peace and dignity of the state.

                               L. L. Collins
                

"L. L. Collins, prosecuting attorney, makes oath and says that the facts stated in the above and foregoing information are true, according to his best knowledge, information, and belief.

                               L. L. Collins
                

"Subscribed and sworn to before me this the 3d day of October, 1905.

                                    "J. W. Green
                           "Clerk of the Circuit Court."
                

The testimony tended to develop the following facts: The deceased, C. C. Still, and the defendant, Dave Long, lived on adjoining premises in the suburbs of a town named Steele in Pemiscot county, Mo., their houses being about 150 yards apart, and separated by a fence and a barn. On Sunday, October 1, 1905, at 6 o'clock in the morning, the deceased was out in his yard milking his cow, and the defendant was in his own yard. For some six months previous to this time, a bad state of feelings existed between these two, growing out of the fact that the defendant's pigs would wander over the premises of the deceased, and the defendant claimed that the deceased was constantly abusing and chunking them. Many threats were made by the defendant against the deceased. Ben Adams testified that about a week or two before the homicide the defendant was talking about the deceased killing his hogs and clubbing them, and said he had been aggravated enough about it, and he would rather shoot his (deceased) heart out than to eat chicken pie. Wesley Earp testified that along in May, 1905, he and the defendant were talking about some hay the deceased had thrown over in his cow lot, and defendant said, "I am going to kill the G____ d____ son of a b____. He has been bothering me all spring, and I will kill him before the year is out." Witness said to him that that was wrong, and would get him into trouble, and he said he did not care if it did. On the other hand Winsett, a brother-in-law of the defendant, and the defendant's son, and the defendant himself testified to threats by the deceased. Winsett stated that early on the morning of the difficulty the defendant spoke to the deceased in a modest, low tone of voice, and told the deceased that it looked like he (the deceased) was determined that defendant should not raise any stock or pigs, and to this the deceased replied, "All right, I will blow your G____ d____ brains out before the sun goes down." The son testified that at the time of the killing of the deceased the defendant, who was walking out in the road with a shotgun, told deceased that he was ready to settle their difficulty, and deceased replied, "All right, I am going to blow your G____ d____ brains out," at the same time running his hand into his pocket, and continued to walk along.

The defendant testified in his own behalf, and stated that deceased bothered his (defendant's) hogs, and would beat them when they got into his yard. He told him to keep them out, "and I said, `Keep your gate shut, and they will not bother you.' That was in April." The trouble over the stock continued, and was renewed about once a month. "I then fixed the fence pig-proof, and afterwards took a plow and threw the dirt against the fence to keep the hogs from getting under it. I could not say for certain that the deceased killed any of my hogs. One was thrown over in my lot, and it must have been thrown there, for I have never seen a hog with wings yet." This was about a month before the killing. Deceased made an effort to fix the fence. "Early on the morning of the difficulty I saw the deceased with a claw hammer after a pig, and I said to him, `It seems you do not intend for me to raise or have anything to support my family with.' He pushed the gate wide open, and said, `G____ d____ you, I will kill you before the sun sets,' and raised his right hand with the hammer and waved it in the air. I replied, `Maybe you will,' and walked off. I thought he would carry out his threats. One day when I was in the barn a gun was fired, and the shot came within a foot and a half of me. I did not know what the deceased shot in the barn for. This was a month or six weeks before the killing. At the time of the difficulty I went out to where he was armed to protect myself and my family. I went out to have some decision about the thing and to settle it. Along about the time dinner was ready I saw the deceased coming somewhere about the corner of the fence. Deceased was walking down the road from town towards his home, and I just picked up my gun, and stepped out in the yard and across the fence, going kind of meeting him, and said to him, `I would like to have that difficulty settled,' and he just remarked—he never stopped entirely—`G____ d____ you, you raise your hand, and I will blow your brains out.' He fell with his hand in his pocket. I shot for protection. I did not tell Goff that I had done what I intended to do, when he asked me about the killing. I said, `You will find out when I have to tell it.' I did not tell Wallace that I had done what I intended to do." Some six witnesses testified to the good reputation of the defendant for peace and quietude and for truth and veracity.

On the part of the state, Ira Wade testified the he was a young man about 21 years of age, and was living at the defendant's house at the time of the homicide, and saw the defendant kill the deceased with a shotgun on Sunday, October 1, 1905, between 10 and 11 o'clock that morning. At 6 o'clock that morning they had had trouble. Witness heard the defendant tell the deceased that anybody that would do a fellow's hogs that way would slip around and shoot him after night. They were in a racket after this racket. "I saw the defendant in the house getting...