State v. May

• Citation: 43 S.W. 637,142 Mo. 135
• Parties: STATE v. MAY et al.
• Decision Date: 22 December 1897
• Court: United States State Supreme Court of Missouri

43 S.W. 637

142 Mo. 135

STATE v. MAY et al.

Supreme Court of Missouri, Division No. 2.

December 22, 1897.

HOMICIDE — EVIDENCE — INSTRUCTIONS — CONSPIRACY — SERVING JURY LIST.

1. Laws 1895, p. 166, § 4204, declaring that "a list of jurors * * * shall be delivered to the defendant in the cases specified * * * at least 24 hours before the trial, and in the cases specified * * * at least 12 hours before the trial; and in other cases before the jury is sworn, if such list is required," gives defendant an absolute right to the 24 hours, or the 12 hours, if the case is one of those enumerated, subject to his waiver; the clause "if * * * required" referring only to "other cases."

2. One is not served with jury list 24 hours before trial, as required by Laws 1895, p. 166, § 4204, where it is delivered to him at 12 m. Saturday, and at 10:30 a. m. Monday he is required to announce his challenges to the jury; Sunday being dies non.

3. Defendants having offered themselves as witnesses, the state can attack their general moral character.

4. Though the court instructs as to the other elements of murder in the second degree, refusal to charge that if defendant intentionally killed deceased by hitting him over the head with a stick, which was a deadly weapon, the presumption, in the absence of evidence to the contrary, is that the killing is murder in the second degree.

5. The operation of threats made by one of two conspirators, but before the existence of the conspiracy, is limited to the one who made them.

6. Evidence that G. pointed out B. to C., and said, "There he is," and that C. nodded his head, and that at the same time G. pointed out to him W., is not evidence of a conspiracy to effect the great bodily harm or death of B. or W., though an enmity existed between G. on the one hand and B. and W. on the other hand, and though, soon after, C. and B. indulged in a fight, and G. and W. did likewise, resulting in W.'s death from a blow inflicted with a club which G. picked up on the spur of the moment.

7. Even if C. and G. conspire to beat B. and W. with their fists, C. is not answerable for the death of W. caused by G. acting independently of such agreement and striking him with a club.

8. Exclamation of C. to G. to "Catch him and kill him," referring to B., with whom C. was having some words, could have no effect to establish an agreement between C. and G. to effect an unlawful purpose, so as to make C. answerable for death of W., killed by G. striking him with a club while C. and B. were fighting.

9. An instruction as to murder in the first degree is, owing to the inherent cruelty and barbarity of the act, warranted by evidence that defendant struck deceased on the head with a club after he was lying prone and helpless on the ground.

10. Evidence of defendants' resistance to arrest for a previous admitted homicide is irrelevant on their trial for the homicide.

Appeal from criminal court, Buchanan county; R. E. Culver, Judge.

George May and another were convicted of murder, and appeal. Reversed.

Wilson & Watkins and Huston & Brewster, for appellants. The Attorney General and Saml. B. Jeffries, for the State.

SHERWOOD, J.

George and Charles May, respectively uncle and nephew, appeal to this court from their conviction of murder in the first degree. William I. Burdette is the name of the person killed, and the indictment charges the homicide to have been done on the 9th day of February, 1896, with a heavy wooden club, and that with it the skull of William I. Burdette was broken and crushed by the defendants. Touching the circumstances attendant on the tragedy, there is the usual conflict in the testimony. About two weeks prior to the 9th of February aforesaid, Charley May, as he was usually called, arrived at his uncle's house. He was a stranger in those parts. William I. Burdette had a son, by the name, of "Bill" Burdette, who was a prominent figure in this presently to be disclosed drama of the countryside. The elder Burdette and the elder May lived on adjoining farms, and between them, as is frequently the case between rival nations occupying contiguous territory, there existed feelings less calculated to "raise a mortal to the skies" than to "drag an angel down." Old man Burdette would not let George May set traps on his farm to catch skunks, and there was anticipatory trouble between them in case the elder Burdette compelled the elder May to work a certain piece of road. It does not appear, however, that May ever was compelled to do such work. But towards "Bill" Burdette, the son, George May entertained a special aversion, which in about October of the precedent year gave token of its existence by a fight occurring between the parties, which, as May got the better of the combat, resulted in the defeated party causing the arrest of May, and, in consequence of the latter being fined, created a deficit in his exchequer to the amount of $17.50. This financial outcome by no means tended to soften George May's asperity of temper towards "Bill" Burdette and towards his father. This increased acerbity of feeling in May's breast caused him to utter to several neighbors of his divers and sundry threats of a less or greater force against the persons and lives of the two Burdettes. It is in evidence that these threats occurred in the early part and middle of October, in November, and also in December, prior to the homicide, and prior to Charles May's advent at his uncle's residence. Of these threats a patient search of this record does not afford a trace or indication that the younger May knew anything. Bill Burdette had formerly been a resident of Kansas, and while there placed a pretium affectionis on a set of harness (vide 4 Cent. Diet. 4714; Jacob, Law Diet.; also Jones v. Williams, 139 Mo., loc. cit. ____, 39 S. W. 486); and in consequence of its informal appropriation he was for a time forcibly secluded from ordinary social intercourse. On his release he returned to Missouri. But Charley May had also resided in Kansas, and was in this respect his peer, and could add the similiter to Bill Burdette's unconventional method of acquiring property. Shortly after the expiration of Charley May's prison sentence, he, too, returned to Missouri. These preliminaries are necessary to an understanding of the previous biographies of the chief persons mentioned in this record, and of their relations to and towards each other. Having disposed of these prefatory matters, we proceed to relate those things which have a closer bearing on the issues joined in this case.

On the morning of Sunday, the 9th day of February, 1896, George May, his two little girls, aged, respectively, 13 and 11 years, and Charles May, after suitably dressing themselves for the occasion, — Charley May with his overcoat on, — wended their way afoot to Sugar Creek church, a building about a mile or so from where they lived. William I. Burdette and family, consisting of his wife and three daughters in the spring wagon, drawn by a pair of mules, and two daughters (one married and one single) on horseback, also betook themselves to the house of God. Claude Andrews also joined this cavalcade on its way to the objective point aforesaid, he being the attendant of one of William I. Burdette's daughters. Services being over, and a portion of the congregation still remaining in the church, some of them gathered around the two stoves. Among these, as "Bill" Burdette testifies, were George May and Charles May, as well as himself; that on this occasion George May pointed him out to Charley May (whom "Bill" Burdette did not then know), saying "There he is," and that Charley May thereupon nodded his head; that George May also pointed out, at the same time, to Charley May, the father of witness; and that this was done while about a dozen persons were gathered about the stove, and while witness was within some 7 or 8 feet of George May. No one else testifies to this designation of Bill Burdette by George May, although it would seem that others standing about the stove would of necessity have seen or heard it. Pretty soon after this, George May, Charley, and the little girls left for home, the road leading back to their home turning first west for about 200 yards, and then turning south. On the east side of this road there was a hedge fence and a corn field, and on the west side of this hedge, between it and the road, was a bank 5 or 6 feet high, and on this ran a path. At the corner where the road turns south there is a gate leading into Elliott's field. Into this gate defendants and the little girls turned as they proceeded south. Very soon, however, Charley May and the two little girls got through the hedge, which it was easy to do, and walked in the path along the top of the bank. How soon George May got through the hedge and walked in the path does not clearly appear. Meanwhile Bill Burdette, who left the church a little after the Mays did, rode on his horse in the same direction in which they had gone. He overtook them soon after he had turned the corner, where the road, after proceeding west some 200 yards, turns south. At this juncture, he says, he saw Charley May and the little girls just getting through the hedge, and walking on top of the bank, about 25 yards from the corner. He says he did not see George then. Upon riding nearly opposite to them, he says, Charley stopped, and said, "Hello, Wild Bill! never won a fight, and never will." Bill says he asked him what he knew about it; and he said, "`Here's one you can't whip, you God damn son of a bitch;' and I told him I didn't know him, and didn't want any trouble; and George May says, `Catch him, God damn him, and kill him.'" That witness saw George May just before he spoke the words just quoted. That he was on the inside of the cornfield, coming up in a kind of run. That, immediately George May uttered these words, Charley May jumped down the bank, — there some three or four feet high, — jumped off the...