State v. McCracken

• Decision Date: 30 July 1937
• Docket Number: No. 34796.,34796.
• Citation: 108 S.W.2d 372
• Parties: THE STATE v. SAM McCRACKEN, Appellant.
• Court: Missouri Supreme Court

108 S.W.2d 372

THE STATE v. SAM McCRACKEN, Appellant.

No. 34796.

Supreme Court of Missouri.

Court en Banc, July 30, 1937.

Appeal from Webster Circuit Court. — Hon. C.H. Skinker, Judge.

AFFIRMED.

W.I. Mayfield and Phil M. Donnelly for appellant.

Roy McKittrick, Attorney General, and J.E. Taylor, Assistant Attorney General for respondent.

(1) The court did not err in failing to discharge the juror, Chris Thomas, from the panel of thirty jurors. Sec. 3671, R.S. 1929; State v. Stanton, 68 S.W. (2d) 813; State v. Kauffman, 73 S.W. (2d) 217; State v. Wampler, 58 S.W. (2d) 266; State v. Nevils, 51 S.W. (2d) 47. (2) The court did not err in permitting a special prosecuting attorney to make the opening statement. State v. Stark, 72 Mo. 38; State v. Boyer, 232 Mo. 277; State v. Coleman, 199 Mo. 112. (3) Instruction 1 given by the court correctly defined deliberately. State v. Bobbst, 269 Mo. 225; Ex parte Burgess, 274 S.W. 425; State v. Hershon, 45 S.W. (2d) 71; State v. Warren, 33 S.W. (2d) 130.

COOLEY, C.

Appellant was convicted in the Circuit Court of Webster County, on change of venue from Camden County, of murder in the first degree for the killing, on October 6, 1934, of Jim Colvin. He was sentenced, in accordance with the verdict of the jury, to life imprisonment in the penitentiary and has appealed. Omitting reference to pages of the bill of exceptions we adopt the statement of facts given in the State's brief as sufficiently outlining the facts, for most purposes of the appeal, as follows:

"At the time of the alleged killing appellant lived on a farm in Camden County, Missouri, on the south side of a county road which runs east and west. His barn was on the north side of said road and the deceased, who rented part of appellant's farm, lived in a tenant house about 100 yards due south of appellant's home. North of the barn was a lane leading down to a cornfield where deceased had been hauling fodder the day before he was killed. This lane ran north for some distance and turned east.

"On the morning deceased was killed he left his home and came by the barn where his son was harnessing a team and walked on down the lane toward the field where they had been hauling fodder. About ten or fifteen minutes afterwards his son heard four shots. A number of witnesses also heard the four shots and the deceased holloaing in a distressful voice as if in pain. A number of persons arrived at the scene of the killing shortly after the shots had been fired and found the deceased lying in the lane on his right side. He had been shot just back of the center of the left shoulder and his nose and upper jaw were shot off. From the body there was blood leading on down the lane for about 60 steps to where there was a small hole in the ground. In the hole there was found a piece of cap, identified as deceased's, blood, flesh, teeth, a number four and number two shot and gunshot wadding. A short distance from the hole in the lane there was a 12-gauge shotgun which had two empty shells in it and a gunny sack partly full of corn. The gun was immediately recognized as one belonging to appellant. On the right or south side of the lane, opposite the hole, there was a walnut tree and a small hackberry tree; there was blood spattered on the hackberry tree and shot in the walnut tree. On the left or north side of the lane, opposite the hole, there were some posts lying between the lane and fence and across the fence and about forty feet in the field there were a number of fodder shocks. Between the fodder shocks and the walnut and hackberry tree, there was found gunshot wadding scattered across the lane. A number of witnesses testified that the wadding was in line from the corn shocks, north of the fence, to the hackberry and walnut trees on the south side of the lane. It was foggy the morning of the murder and there had been a heavy dew, which wet the dirt and footprints were discernible over towards the fodder shocks and there was dirt on a wire of the fence within five or six feet of where the gun wadding was lying inside the field.

"The appellant, the day before the killing, bought four 12-gauge number two shotgun shells, which were the same kind as the two empty shells found in appellant's gun.

"The Sheriff of Camden County testified that after he arrived at the scene of the killing, at about eight-thirty A.M., he learned that the defendant owned the gun found in the lane, and went to his home and searched the premises and then went out different roads in search of appellant, and finally found him in a field three miles from the scene of the crime. Appellant admitted to the sheriff that he shot deceased, but said he did it in self-defense.

"Morgan Moulder, Prosecuting Attorney of Camden County at the time of the killing, testified that the appellant admitted shooting the deceased twice as he was coming toward him with a white-handled long, keen-bladed knife. He further testified that he was present when deceased was searched and that there was found in his pocket a closed black-handled knife. He also testified that appellant came to his office some time before the killing and wanted to put deceased off his farm and he advised appellant that he did not have the authority to do so and appellant became angry and stated he had a double-barreled shotgun which he could use as his own law.

"Appellant testified in his own behalf that at the time he shot deceased that deceased was coming toward him with an open knife in his hand, and that he shot him to save his own life. He further testified that deceased had threatened him on several occasions, and on one occasion deceased had chased and struck at him with an axe."

Such further facts as may be necessary will be given in the course of the opinion.

Appellant, though represented by able counsel below, has filed no statement or brief in this court. We must look to his motion for new trial for the grounds on which he seeks reversal.

[1] The first contention is that the court erred in not sustaining defendant's challenge, for cause, of a prospective juror, Thomas, one of the panel of thirty from which the trial jury was to be selected. Thomas testified on voir dire examination that when he had first heard of the killing he had formed an opinion, based solely, however, upon what he had been told by persons who, themselves, did not purport to know any of the facts and, perhaps, from having read about the killing — in other words, upon rumor and newspaper reports. He further said, in answer to questions by counsel and by the court that he could and would disregard any impression so formed in his mind and determine the issues solely upon the evidence and the court's instructions. He further said that he could not recall what his original opinion or impression was and, in substance, that he had no opinion as to defendant's guilt or innocence. Under our holding in State v. Wampler, 58 S.W. (2d) 266, where we discussed a similar contention, the ruling of the trial court denying the challenge for cause was correct. [See, also, State v. Stanton, 68 S.W. (2d) 811; State v. Kauffman, 335 Mo. 611, 73 S.W. (2d) 217.]

[2] It is contended that the court erred in permitting Mr. Moulder, an attorney assisting in the prosecution, to make to the jury the opening statement of facts which the State expected to prove. Mr. Moulder was prosecuting attorney of Camden County when the prosecution was begun and filed the information. We gather that he had gone out of office when the case was tried but had been retained to assist in the prosecution. There was no error in this ruling of the court. The point was decided adversely to appellant's contention in State v. Stark, 72 Mo. 37, followed in State v. Taylor, 98 Mo. 240, 11 S.W. 570, and in State v. Coleman, 199 Mo. 112, 120, 97 S.W. 574. To same effect see State v. Boyer, 232 Mo. 267, 277, 134 S.W. 542.

[3] The next assignment of error in the motion for new trial is that the court erred "in admitting irrelevant and illegal testimony over the objections and exceptions of the defendant ... as follows, to-wit:" Then follows extracts from the testimony of ten or a dozen witnesses, consisting of questions, objections thereto, the rulings of the court and the answers of the witnesses to questions to which objections had not been sustained, with no statement in the motion for new trial of any specific ground or reason for the complaint of error. In State v. Lonon, 331 Mo. 591, 56 S.W. (2d) 378, 381-2, we held a similar assignment in a motion for new trial insufficient under the statute. Adhering to that ruling, we shall not discuss in detail the evidence referred to or the court's rulings in admitting the same. We have, however, carefully read the evidence as preserved in the bill of exceptions and find no prejudicial error in the rulings complained of.

[4] Contention is made in the motion for new trial that there was no evidence of deliberation and that the evidence was therefore insufficient to authorize submission of murder in the first degree and to sustain the verdict for that grade of murder. To this we cannot agree. Where a homicide is intentionally committed with a deadly weapon used upon a vital part of the body and there is no witness to the occurrence, murder in the second degree is presumed in the absence of evidence tending to show a different grade of offense or that such killing was justifiable or excusable. [State v. Snow, 293 Mo. 143, 238 S.W. 1069; State v. Eason, 322 Mo. 1239, 18 S.W. (2d) 71.] But murder in the first degree may be shown by circumstantial evidence. "Premeditation, ... deliberation, the cool blood, may all be inferred from the circumstances of the homicide." [State v. Cade, 326 Mo. 1132, 1137, 34 S.W. (2d) 82, 83.]

In the case before us there was evidence that there existed a feeling of hostility between defendant and the deceased. Sometime before the killing the defendant had tried to have deceased put off the place which...