State v. May

• Decision Date: 03 February 1903
• Parties: STATE v. MAY.
• Court: Missouri Supreme Court

72 S.W. 918

172 Mo. 630

STATE v. MAY.

Supreme Court of Missouri, Division No. 2.

February 3, 1903.

CRIMINAL LAW — HOMICIDE — CHANGE OF VENUE — LOCAL PREJUDICE — JURORS — PANEL — COMPLETION BY JUDGE — STATUTES — APPLICATION — SPECIAL JURY — EVIDENCE — WITNESS—CROSS-EXAMINATION — INSTRUCTIONS — MANSLAUGHTER — REASONABLE DOUBT — DRUNKENNESS — VERDICT — DISQUALIFICATION OF JURORS — REVIEW — HARMLESS ERROR.

1. Where an application for a change of venue for local prejudice was supported and opposed by an equal number of witnesses, the discretion of the trial court in overruling the application will not be disturbed on appeal.

2. Rev. St. § 3795, provides for the drawing

of a jury panel from the wheel, and section 3797 declares that, when a jury for the trial of a case cannot be made up from the regular panel, the judge may deliver to the proper officer a list of jurors sufficient to complete the panel. Held, that where a panel of 47 jurors had been drawn from the wheel for a criminal case, and from such panel only 10 competent jurors were secured, the court was justified in making out a list of jurors sufficient to complete the panel, without drawing more names from the wheel.

3. That a jury summoned to try a criminal case was a special jury, as distinguished from a regular one, did not render Rev. St. § 3797, authorizing the judge before whom the case is pending to deliver to the proper officer a list of jurors sufficient to complete the panel, when the jury could not be obtained from the regular panel, inapplicable to the proceeding.

4. Rev. St. 1895, § 3795, providing for the drawing of jurors by the clerk of the county court in the presence of a judge, by drawing the names of jurors from the jury wheel or box, etc., is directory only.

5. Where a witness for the prosecution stated on cross-examination that she did not feel very friendly toward defendant, it was not error to sustain an objection to a question as to whether it was not witness' desire to see defendant convicted.

6. In a prosecution for homicide, it was not error for the court, in ruling on an objection to a question, to announce from the bench, in the presence of the jury, that the question was in respect to an immaterial matter.

7. Where deceased was unarmed when shot, and was making no demonstration evincing a purpose to assault defendant, and the only provocation defendant had for shooting him was that deceased, a short time previous, had said, in relation to an epithet applied to him by defendant, that defendant was "a damned liar," etc., and there was no evidence that the homicide was the result of a sudden quarrel, the court did not err in refusing to instruct on manslaughter.

8. In a prosecution for homicide, a requested instruction that if the jury believed defendant guilty of murder, but entertained "a doubt" as to the degree, they should give the defendant the benefit of that doubt, and find him guilty of murder in the second degree, was properly refused, for failure to limit the "doubt" to a "reasonable" doubt.

9. The punishment for murder in the first degree being fixed by statute, it was proper for the court to instruct that, if the jury found defendant guilty of murder in that degree, they would simply so state, as they were charged with no responsibility with respect to the punishment.

10. In a prosecution for homicide, an instruction that it was immaterial whether defendant was drinking or intoxicated at the time, as drunkenness neither excuses nor affects the crime, was not prejudicial, as justifying the jury in inferring that defendant was attempting to excuse or palliate his crime by pretending drunkenness, though there was no evidence on which to base the instruction.

11. In a prosecution for homicide, a finding on conflicting evidence that charges of prejudice against jurors had not been proven will not be disturbed on appeal.

12. In a prosecution for homicide, evidence held to justify a conviction of murder in the first degree.

Appeal from Criminal Court, Buchanan County; Benj. J. Casteel, Judge.

Charles May was convicted of murder, and he appeals. Affirmed.

From a conviction of murder in the first degree for having shot to death with a pistol, at Buchanan county, on the 27th day of December, 1900, one John R. Martin, defendant appeals. The cause was here on a former appeal. 168 Mo. 122, 67 S. W. 566. The shooting occurred at the house of Peter Jones, at night, when there was a dance in progress there. Jones was a farmer, and the grown sons and daughters of himself and wife, of whom there were several, together with a number of neighboring young people, were in attendance upon the occassion. Defendant was in the service of Jones as a farm hand at that time. Whisky seems to have been freely used, but no one was intoxicated. May, the defendant, was acting as floor manager, and about 11 o'clock a square dance with six or eight couples on the floor was in progress. Engaged in the dance was the deceased, John Robert Martin, who was dancing with a Miss Bettie Simmons as his partner. A certain figure in the dance was called, in which Martin and his partner should have taken part, but did not do so, but remained standing in their place upon the floor. No notice apparently was taken of it, and no disturbance made by Martin. Very soon thereafter May, who had been calling the dance, walked over to Martin and said something to him. Miss Simmons testified that she did not hear exactly what deceased said, but that deceased replied to defendant that he did not say that May had slighted him in any way in the dance, but that he (deceased) had slighted himself by not dancing at the proper time. When the defendant turned and started away from deceased, he was heard to say, if Martin said he (defendant) had slighted him, he was a "damned liar." The deceased, in reply to this remark, said that defendant was a liar. The defendant, at this remark by deceased, became angry, if not already so, and signaled the music to stop, which was done. He then at once started toward deceased, at the same time remarking he "did not allow any damned man to call him a liar." Two of the Jones boys and a man named Gantt ran and grabbed May, and Babe Martin, a brother of Robert Martin, stepped over by the side of and in front of the deceased, and said to him to be quiet and not have any trouble. The evidence shows the deceased stood there by his brother, and did not try to assault the defendant, but did make some offensive remarks directed to the defendant. The deceased was unarmed, and stood most of the time just where he had been standing when the trouble commenced. The Jones boys and others attempted to hold the defendant, and Mrs. Jones came in and asked him to desist, and she testifies he said he would. Just about this time the defendant, being eight or ten feet from the deceased, said to the deceased that he would get him (meaning the deceased) in the morning. Mrs. Jones about this time left the room, and, while her sons were still trying to hold the defendant, he pulled a pistol from his right hip pocket, and, placing it under the arm of one of the Jones boys, who was in front of and between the defendant and the deceased, fired at John Robert Martin; the ball striking him in the front of the forehead, above the eye, and entering the brain. The deceased fell unconscious, and never afterwards spoke, dying the next day about 3 o'clock. When the shot was fired, the Jones boys released May and sought safety for themselves. Babe Martin, a brother of John Robert Martin, the deceased, stood by the side of him when he was shot. The evidence is somewhat conflicting as to who fired the second shot, whether Babe Martin fired it at May, or the defendant fired it at Babe Martin; but the preponderance of the testimony shows that there was a little pause between the first and second shots. Several witnesses testify that May fired the second shot at Babe Martin. One or two testify that Babe Martin fired the second shot at the defendant. But, anyway, the firing began again, and Babe Martin and the defendant fired six or eight shots at each other, resulting in the defendant being wounded in the left shoulder and one of his hands, and one McGee, a looker-on, being shot through the ear, and slightly, but not seriously, wounded. While the firing was going on, the defendant backed into an adjoining room, and soon passed into a hall and out of the house, and, as far as the evidence discloses, was not seen again until the next evening, about sunset, when he returned to Jones' house, and old Mr. Jones and one of his sons took the defendant to St. Joseph, where he was delivered to the authorities and his wounds were dressed.

The court, over the objection and exception of defendant, instructed the jury as follows:

"(X) The court instructs the jury that the indictment in this case was filed on the 5th day of March, 1901, and charges the defendant with murder in the first degree. Under the evidence adduced, however, it will be necessary for you to determine, in the event you find the defendant guilty of any offense, whether he should be convicted of the specific offense charged in the indictment, or for murder in the second degree. Murder in the first degree is the killing of a human being willfully, deliberately, premeditatedly, and with malice aforethought. Murder in the second degree has all the elements of murder in the first degree except that of deliberation. `Willfully,' as used in these instructions, means intentionally; that is, not accidentally. Therefore, if the defendant intended to kill, such killing is willful. In the absence of qualifying facts and circumstances, the law presumes that a person intends the ordinary and probable result of his acts. If you believe from the evidence beyond a reasonable doubt that the defendant with a pistol shot John Robert Martin in a vital part and killed him, you will find that the defendant intended to kill him,...