State v. Maupin

• Decision Date: 22 May 1906
• Citation: 196 Mo. 164,93 S.W. 379
• Parties: STATE v. MAUPIN.
• Court: Missouri Supreme Court

93 S.W. 379

196 Mo. 164

STATE v. MAUPIN.

Supreme Court of Missouri, Division No. 2.

May 22, 1906.

1. CRIMINAL LAW—INFORMATION—SERVICE OF COPY—MURDER IN FIRST DEGREE.

Under the statute, a defendant charged with murder in the first degree is entitled to a copy of the information before he is required to plead.

2. SAME—WAIVER OF SERVICE.

Where a defendant, on a prosecution for murder in the first degree, made no objection to the failure to serve a copy of the information upon him as required by the statute, and entered a plea of not guilty and went to trial thereon, he waived the service.

3. HOMICIDE—MURDER IN SECOND DEGREE—EVIDENCE —SUFFICIENCY.

On a prosecution for murder, evidence held sufficient to sustain a conviction of murder in the second degree.

4. SAME—HOMICIDE IN DUEL.

Where one, under color of fighting upon equal terms with another, uses a deadly weapon without the other's knowledge, and kills, it amounts to murder.

5. CRIMINAL LAW — TRIAL — CLOSING EVDENCE.

There was no error in closing the evidence, against the objection of defendant, on the ground that he had other witnesses whom he proposed to offer, but could not because they were not in the courtroom, where the court was not advised who the witnesses were or upon what point they were to be called.

6. SAME.

A defendant, who did not take steps to secure the attendance of a witness for the

state, in his own behalf, could not complain of the action of the court in closing the evidence, against his objection that he proposed to offer the witness, and could not because he was not in the courtroom.

7. SAME—INSTRUCTIONS.

An instruction that defendant must be believed guilty beyond a reasonable doubt, but that a doubt, to authorize an acquittal, must be a substantial doubt based on the evidence, and not a mere possibility of innocence, was proper.

8. SAME—GOOD CHARACTER.

The court instructed that the previous good character of defendant, if proved to the reasonable satisfaction of the jury, ought to be considered in passing on the guilt of defendant, but that, if all the evidence in the case, including that which had been given touching the previous good character of the defendant, showed him to be guilty of the charge, then his previous good character could not justify, excuse, palliate, or mitigate the offense. Held, that the instruction was proper.

9. SAME—CREDIBILITY OF WITNESSES.

An instruction that the jury were the sole judges of the credibility of the witnesses, and the weight and value to be given their testimony, was proper.

10. HOMICIDE — INSTRUCTIONS — SELF-DEFENSE.

On a prosecution for murder, the court instructed that the law of self-defense is emphatically the law of necessity to which a party may have recourse under certain circumstances to prevent any reasonably apprehended great injury which he may have reasonable grounds to believe is about to fall upon him, and that, if defendant had reasonable cause to believe that deceased had a design to commit a felony on defendant, or do him great bodily injury, and that there was reasonable cause to apprehend immediate danger of the consummation of the design, and defendant cut deceased and killed him to prevent the accomplishment of such design, the killing was justifiable. Held, that the instruction was not erroneous, because of the use of the phrase "that the law of self-defense is emphatically the law of necessity."

11. CRIMINAL LAW—INSTRUCTIONS—INTEREST OF DEFENDANT.

The court instructed that defendant was a competent witness in his own behalf, and that the jury might consider his testimony, but that, in determining what weight and credit should be given his testimony, they consider the fact of his interest in the result. Held, that the instruction was proper.

12. SAME—REQUESTS FOR INSTRUCTIONS—PRESUMPTION OF INNOCENCE.

It is not reversible error to refuse an instruction stating the presumption of innocence when the court has fully instructed on the doctrine of reasonable doubt.

13. SAME—REQUESTS COVERED BY INSTRUCTIONS GIVEN.

There is no error in refusing instructions covered by those already given.

14. HOMICIDE — INSTRUCTIONS — SELF-DEFENSE.

Where, on a prosecution for murder, the evidence showed that there was an agreed mutual combat between decedent and defendant, and that from the beginning defendant used a knife, inflicting a mortal wound, and the court instructed on self-defense, there was no error in refusing instructions in substance the same as those given, except that they were more elaborate and informed the jury that the danger need not have been actual or real, and that defendant was not required to nicely gauge the force necessary to protect himself.

15. CRIMINAL LAW—APPEAL — FAILURE TO PRESENT QUESTION ON TRIAL — INSTRUCTIONS.

On a prosecution for murder, the court's failure to instruct on manslaughter will not be reviewed on appeal, where no such instruction was asked, and no exception saved to the failure of the court to instruct on all questions of law.

16. SAME—FAILURE TO PRESENT QUESTION ON MOTION FOR NEW TRIAL.

Failure, on a prosecution for murder, to instruct on manslaughter, will not be reviewed on appeal, where not made a ground of the motion for a new trial.

17. HOMICIDE—INSTRUCTIONS—MANSLAUGHTER.

Where, on a prosecution for murder, it appeared that there was an agreed mutual combat between decedent and defendant, and that from the beginning defendant used a knife, inflicting a mortal wound, an instruction on manslaughter in the fourth degree was not required.

Appeal from Circuit Court, Taney County; Jno. I. Moore, Judge.

Ward Maupin was convicted of murder in the second degree, and he appeals. Affirmed.

Price & Ford, for appellant. The Attorney General and N. T. Gentry, for the State.

GANTT, J.

At the April term, 1905, of the circuit court of Taney county, the prosecuting attorney of that county filed an information, duly verified, charging the defendant with murder in the first degree of one Charles Knight, on the 7th of February, 1905, at said county. At the June term, 1905, the defendant was tried and convicted of murder in the second degree, and his punishment assessed at 12 years in the penitentiary. In due time he filed his motions for new trial and in arrest of judgment, which being overruled, he was sentenced in accordance with the verdict, and from that sentence he appeals.

The state's evidence tended to show that on the night of February 7, 1905, there was a dance at the home of Jeff Clayton, near the town of Hercules, in Taney county. The defendant and the deceased went to this dance. The defendant was the escort of Miss Bertha Wright, and the deceased of another young lady. The evidence shows that the deceased and other young men were drinking considerably that night, though there had been no other trouble. During the evening, the deceased and the defendant were standing facing each other in front of the fireplace. Deceased said to defendant that he was a better man than defendant was, to which defendant replied that he would have to be shown; that deceased then stated that, if defendant would go out of the house, he (deceased) would show him, and defendant said he would go any place; and in a moment both of them went out of the front door into the yard, defendant going first. As defendant turned and started toward the door, he put his hand in his pocket, and, when they reached the yard, the evidence for the state tends to show that, before deceased had made any movement towards the defendant, defendant took hold of the deceased by the collar and struck him on the neck, and then hit him six or seven times; the deceased striking back. The defendant then threw the deceased towards the gate, or, as expressed by one witness, he "slung" deceased toward the gate; deceased going in a stooped over position. While standing near the gate, the deceased fired three shots from a pistol. Defendant at that time was running around the corner of the house. Deceased then exclaimed: "Ward [the defendant] has cut me all to pieces." He then walked back to the front door and fell, and it was discovered that he had been stabbed on the neck and back. He was carried into the house, and died in a few minutes, before the physician could be summoned. An examination of his body disclosed that there were six wounds, all inflicted with a knife, one of which was a gash on the neck, which severed the jugular vein, and doubtless produced his death.

On behalf of the defendant, the evidence tended to prove that the deceased had asked Miss Mary Burns to go with him to the dance, but she declined. He insisted, saying that it was his last dance in Taney county; that, if she did not go, she would wish that she had gone, as something was going to happen. It also appeared in evidence that, on the day prior to the dance, deceased stated to one John Howard that he (deceased) was going to said dance to make the people dance when he said dance, and to run things; that he was going to leave the county, and was going to lick somebody, or get a licking; that deceased carried a pistol the night of the dance, and he objected to Miss Maud Cranfield dancing with George Adamson, and said that he would shoot Adamson, if she danced with him. It appeared that, on the Sunday before the dance, defendant and deceased called together at the home of a Miss Bertha Wright, and a Miss Dinah Robins was there. The defendant spent most of his time talking to Miss Wright, and the deceased to Miss Robins; that, when defendant and Miss Wright entered the room, deceased was lying on the bed, and Miss Wright said that if he did not get up she would whip him. This familiarity displeased the defendant, and he told Miss Wright she could take her choice, either talk to him or to the deceased, and he guessed he would quit, and she promptly replied that there were other boys for her to talk to and his quitting was all right. When this conversation was reported to the deceased, he...