State v. Malone

• Decision Date: 12 August 1933
• Docket Number: No. 32775.,32775.
• Citation: 62 S.W.2d 909
• Parties: THE STATE v. JOHN R. MALONE, Appellant.
• Court: Missouri Supreme Court

62 S.W.2d 909

THE STATE v. JOHN R. MALONE, Appellant.

No. 32775.

Supreme Court of Missouri, Division Two.

August 12, 1933.

Appeal from Mississippi Circuit Court. — Hon. W.H.D. Green, Judge.

REVERSED AND REMANDED.

M.G. Gresham, Bailey & Bailey, Harry C. Blanton and Frank K. Ashby for appellant.

(1) The court erred in permitting the State to offer in evidence the garments worn by the deceased at a time when there was no dispute about the location of the wounds, the identity of the deceased, or that Malone fired the fatal shots. State v. Rennison, 306 Mo. 473, 267 S.W. 853; State v. Creed, 299 Mo. 317, 252 S.W. 678; State v. Clough, 39 S.W. (2d) 36. (2) The court erred in giving instruction numbered 4 on behalf of the State, for the reason that it erroneously defines the definition of manslaughter, in that it defined it to be the intentional killing, etc., without malice and without premeditation, but says nothing about the absence of "deliberation," thereby inferentially telling the jury that unless the appellant had deliberated, he couldn't be guilty of manslaughter, whereas, the law is that not only must there be an absence of malice and premeditation, but there must likewise be no deliberation. State v. Conley, 164 S.W. 197, 255 Mo. 185; State v. Lewis, 154 S.W. 719, 248 Mo. 498; State v. Burrell, 252 S.W. 711, 298 Mo. 672; State v. Clough, 38 S.W. (2d) 36; State v. Gore, 237 S.W. 993, 292 Mo. 173. (3) By the use of the phrase that the "law of self-defense is emphatically the law of necessity" it intimates to the jury that the appellant had no right to kill the deceased until or unless the deceased struck the first blow. In other words, until it became actually necessary to do something toward defending himself, whereas the law of this State is that an appellant can, if necessary, strike the first blow and does not have to wait until it is too late. State v. Matthews, 148 Mo. 185, 49 S.W. 1086; State v. Ball, 262 S.W. 1045; State v. Rennison, 306 Mo. 473, 267 S.W. 853. (4) The appellant was entitled to have the jury consider all the facts and circumstances at the roadhouse, including not only the threats, as set out in instruction numbered 14, but the demeanor and conduct of the deceased toward Bean and the appellant, to better enable the jury to determine who was the aggressor at the time of the homicide and whether or not Malone's apprehension of danger at that time was real or imaginary. State v. Malone, 39 S.W. (2d) 789; State v. Burns, 212 Mo. 673, 280 S.W. 1026, 44 A.L.R. 848; State v. Testerman, 68 Mo. 415; State v. Dittmer, 124 Mo. 432, 27 S.W. 1117. (5) One of the distinctions between murder and manslaughter is that in manslaughter, although the killing may be intentional and unlawful, yet if malice is absent, it is manslaughter, but if present, is murder. In other words it is the state of mind rather than the provocation producing the state of mind that determines the degree of the offense. State v. Ellis, 74 Mo. 218; State v. Burrell, 252 S.W. 712, 298 Mo. 681; State v. Clough, 38 S.W. (2d) 38; 29 C.J. 1138. (6) There are many authorities in this State that hold that the offense is manslaughter even though there is no actual battery on the part of the deceased upon the appellant. 2 Bishop on Criminal Law (9 Ed.) sec. 704, p. 537; Wharton on Homicide (3 Ed.) sec. 173, p. 277; 29 C.J. sec. 120, p. 1137; State v. Richardson, 92 S.W. 651, 194 Mo. 326; State v. Hermann, 117 Mo. 629, 23 S.W. 1074; State v. Brown, 64 Mo. 374; State v. Heath, 221 Mo. 584, 121 S.W. 154; State v. Bulling, 105 Mo. 225, 15 S.W. 372, 16 S.W. 830; State v. Wilson, 242 Mo. 501, 147 S.W. 104; State v. Young, 314 Mo. 634, 286 S.W. 35. (7) Upon the first appeal in this case this court definitely declared that in this State the burden of proof was upon the State and not upon the defendant to show that the killing was felonious and without justification or excuse and was not in self-defense, which decision not only settled the law generally, but specifically became the law of this case. State v. Malone, 39 S.W. (2d) 790, 327 Mo. 1229; State v. Francis, 52 S.W. (2d) 555; State v. Hickham, 95 Mo. 322, 8 S.W. 256; State v. Wingo, 66 Mo. 181. (a) This court upon the first appeal not only declared this to be the law, but specifically instructed that an instruction embodying the theory of this court upon the first appeal be given to the jury upon the second trial. State v. Malone, 39 S.W. (2d) 794, 327 Mo. 1217. (8) The misconduct of the deputy sheriff in charge of the jury upon final submission in entering the jury room of his own accord and closing the door behind him entitles the appellant to a new trial. Sec. 2683, R.S. 1929; State v. Hayes, 19 S.W. (2d) 883, 323 Mo. 578. (9) Where jury said if the defendant was turned loose he would get into some more trouble. Helvenstein v. State, 111 S.W. 959, 53 Tex. Cr. Rep. 636. (a) Or where the jury discussed abandonment of his wife or that defendant was living with a prostitute. Tuller v. State, 126 S.W. 1158, 58 Tex. Cr. Rep. 571; Golden v. State, 232 S.W. 813, 89 Tex. Cr. Rep. 525. (b) Or to discuss prior convictions not brought out during the trial. Maples v. State, 131 S.W. 567, 60 Tex. Cr. Rep. 169; Vanduran v. State, 98 S.W. 247, 50 Tex. Cr. Rep. 440; Helvenstein v. State, 111 S.W. 959, 53 Tex. Cr. Rep. 636. (c) Or to cross-examine about crimes of which he was not convicted. State v. Hillebrand, 225 S.W. 1006, 285 Mo. 290; State v. Pine, 57 S.W. (2d) 1087. (d) Or to refer to them before it was known whether defendant would take the stand. State v. Jones, 268 S.W. 83, 306 Mo. 437. (e) It is error to hold conversation with family by telephone. Early v. State, 103 S.W. 868, 51 Tex. Cr. Rep. 382; Mays v. State, 197 Pac. 1064, 19 Okla. Cr. 102. (f) Or to refer to former conviction on first trial. Sec. 3733, R.S. 1929; State v. Leabo, 89 Mo. 247, 1 S.W. 288; State v. Stegner, 207 S.W. 826; Casey v. State, 102 S.W. 725, 51 Tex. Cr. Rep. 433; Hill v. State, 114 S.W. 117, 54 Tex. Cr. Rep. 646; Clements v. State, 153 S.W. 1137, 69 Tex. Cr. Rep. 369; Pierce v. State, 222 S.W. 565, 87 Tex. Cr. Rep. 379; McDougal v. State, 194 S.W. 944, 81 Tex. Cr. Rep. 179; Cotton v. State, 228 S.W. 943, 88 Tex. Cr. Rep. 618.

Roy McKittrick, Attorney-General, and Geo. B. Strother, Assistant Attorney-General, for respondent.

(1) No error was committed when the regular judge selected some one else to try the case who had been previously disqualified. (The special judge who had been selected and who had tried the case before, disqualified himself.) The regular judge in reality was the only person who could do so. "The authority to make the request of a judge of some other circuit to try the case is vested in the judge and he can make this request in chambers as judge and even in vacation of his court... . "The lawmaking power never intended by this statute to confer authority upon a judge, who was simply requested to try a particular case, to provide some other judge to try it, in the event he was disqualified." State v. Gillham, 174 Mo. 678. (2) For the jury to partly separate while eating in adjacent rooms or going to toilet in the care or custody of the two deputy sheriffs is not error and the lower court committed no error and is a matter peculiarly with trial court in overruling the motion of the defendant to grant a new trial. This is a matter of discretion exercised by the trial court, and in this case, we think he acted very properly and wisely. State v. Murray, 91 Mo. 103; State v. Sprague, 149 Mo. 425; State v. Gregory, 158 Mo. 148; State v. Washburn, 91 Mo. 574; State v. Collins, 86 Mo. 245; State v. Payton, 90 Mo. 220. In a similar case in this court Judge GANTT passing on same said: "To reverse a judgment on such a showing as this and for such a separation would be trifling with the administration of justice." State v. Spaugh, 200 Mo. 608; State v. Prince, 258 Mo. 329. "In this case it was shown that the jurors were at all times under the immediate and close supervision of sworn officers and that they were not subjected to improper influence. This was sufficient to overcome any adverse presumptions of misconduct." State v. Tawarter, 293 Mo. 291. Fourteen witnesses for the State show entirely different state of facts from Hays Case, 323 Mo. 585; Asbury Case, 327 Mo. 183.

COOLEY, C.

Appellant was convicted of murder in the second degree and sentenced to ten years' imprisonment in the penitentiary for having shot and killed one Arthur Marshall at Sikeston, Scott County, Missouri, on the night of September 25, 1929. This is the second appeal. On the first trial, held in the Circuit Court of Scott County, appellant was convicted of murder in the second degree and sentenced to twenty years' imprisonment. On his appeal from that judgment we reversed and remanded the cause for errors in the trial. [State v. Malone, 327 Mo. 1217, 39 S.W. (2d) 786.] Thereafter the cause was sent on change of venue to the Circuit Court of Mississippi County in the same circuit where the second trial was held. The evidence was substantially the same as at the first trial except that on this trial the court permitted the introduction of evidence, excluded at the first trial, concerning a difficulty between Marshall, the deceased, and one Bean which occurred shortly before the homicide; and on this trial the defendant did not testify, whereas he did on the first. The State introduced as a statement of defendant the testimony which he had given, voluntarily, at the coroner's inquest held immediately following the homicide. The killing is not denied. It was witnessed by several men, all of whom testified. Defendant claimed self-defense. For the purpose of this appeal it is unnecessary to make a detailed statement of the facts, for which see State v. Malone, supra. Such further reference to the facts as may be necessary will be made in connection with the discussion of the points to which they apply.

[1] I. Honorable Frank...