State v. May
| Decision Date | 22 December 1897 |
| Parties | The State v. May et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Buchanan County Criminal Court. -- Hon. R. E. Culver Judge.
Reversed in part; reversed and remanded in part.
Wilson & Watkins and Huston & Brewster for appellants.
(1) The lower court erred in failing and refusing to instruct the jury on manslaughter in the second or third degree as requested by the defendants. State v. Turlington, 102 Mo. 642; State v. Patrick, 107 Mo. 147; State v. Nelson, 118 Mo. 124; State v Tallmadge, 107 Mo. 543; State v. Berkley, 92 Mo. 54. (2) The lower court erred in refusing to instruct the jury to find the defendant, Charles May, not guilty. State v. Ballard, 104 Mo. 634; State v Cox, 65 Mo. 23; State v. Hickman, 95 Mo. 332; State v. Johnson, 111 Mo. 578; State v. Orrick, 106 Mo. 111. (3) The lower court erred in giving to the jury the instruction concerning murder in the second degree. 3 Greenl. on Ev. [13 Ed.], sec. 25; Mahoney v. State, 26 S.W. 622; State v. Rainsberger, 45 N.W. 302; Adams v. People, 9 Hun. 89; State v. Nelson, 98 Mo. 414. (4) The trial court erred in compelling defendants to announce their challenges within twenty-four hours after the list was delivered to them, excluding Sunday. See Acts 1895, p. 165; R. S. 1889, secs. 3852 and 3855; State v. Buckner, 25 Mo. 167; State v. Green, 66 Mo. 644; State v. Harris, 121 Mo. 445. (5) The court erred in not instructing the jury that the threats purporting to have been made by George May long before Charles May ever lived in the State or knew any of the parties and long before it could be claimed that there was any pretense or opportunity for a common design could only be considered as against George May. State v. McKenzie, 102 Mo. 620.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
(1) No objection can be urged against the court's refusal to give instruction number 3. This instruction is embodied in instruction number 1 of those given by the court. State v. Thomas, 99 Mo. 335; State v. Mathews, 98 Mo. 123. (2) And so it is with all the other instructions offered by the defendants. Every point necessary for the jury to be instructed upon is included in those given by the court. An instruction is properly refused if the same principle is contained in another given. State v. Jones, 78 Mo. 285; State v. Watson, 74 Mo. 270; State v. Smith, 80 Mo. 516; State v. Baker, 136 Mo. 74. (3) A multiplicity of instructions should be avoided. State v. Arrell, 97 Mo. 105; State v. Reed, 117 Mo. 604; (4) The instructions given by the court express all the law warranted by the evidence in an exceedingly clear and lucid manner, and as they appear upon the record are not susceptible of objection. Such instructions have been frequently approved by this court. State v. Dunn, 80 Mo. 681; State v. Curtis, 70 Mo. 594; State v. Hooper, 71 Mo. 425; State v. Fitzgerald, 130 Mo. 491; State v. Duestrow, 137 Mo. 44. (5) The court properly refused to instruct the jury on manslaughter in the second and third degrees. State v. Douglas, 81 Mo. 231. (6) The instruction of the court on the question of self-defense constitutes a correct exposition of the law. An apprehension of danger is not sufficient. There must be a reasonable cause for such apprehension. However, it is not necessary that the design or immediate danger of its accomplishment should in fact exist. State v. Bateswell, 105 Mo. 609; 1 McClain's Criminal Law, secs. 303-306. (7) On the question of an agreement, arrangement or understanding between defendants to assault William I. Burdette or William C. Burdette, or to do them great bodily harm, no error was committed. 1 McClain's Criminal Law, sec. 195. (8) When the record fails to show that full twenty-four hours was given defendant in which to make his challenges he will be considered as having waived his statutory privilege in the premises and can not afterward take advantage of such failure when he neglected to demand it at the time. State v. Gilmore, 95 Mo. 554; State v. Nagel, 136 Mo. 45.
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 ninth 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 ninth 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 toward "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 toward "Bill" Burdette and toward his father. This increased ascerbity 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 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. Dic. 4714; 5 Jacob, Law Dic. 281; also, Jones v. Williams, 139 Mo. 1, 37; 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 toward each other. Having disposed of these prefatory matters, we proceed to relate those things which have a closer bearing on the issue joined in this case.
On the morning of Sunday, the ninth day of February, 1896, George May, his two little girls aged respectively thirteen and eleven 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. Wm. 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 Wm. 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 Charley May thereupon nodded his head; and that George May also pointed out at the same time to Charley May the father of the witness, and that this was done while about a dozen persons were gathered about the stove, and while witness was within some seven or eight 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 two hundred yards, and then turns south. On the east side of this road there was a hedge fence and a cornfield, and on the west side of this hedge between it and the road was a bank five or six 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. ...
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