State v. Mills
| Decision Date | 04 December 1917 |
| Parties | THE STATE v. WALTER MILLS, Appellant |
| Court | Missouri Supreme Court |
Appeal from Cooper Circuit Court. -- Hon. J. G. Slate, Judge.
Reversed and remanded.
L. O Schaumburg for appellant.
(1) The court failed to instruct the jury as to all the law arising in the case, contrary to Sec. 5231, R. S. 1909. Whatever grades of crime the defendant's testimony tended to prove, should have been covered by appropriate instructions based upon his testimony, and the failure of the court so to instruct the jury constitutes reversible error. State v Richardson, 194 Mo. 315; State v. Heath, 221 Mo. 565; State v. Sebastian, 215 Mo. 58; State v. Banks, 73 Mo. 592. (2) Defendant testified that the deceased first struck at him, whereupon he jumped back pulled his hands out of his pockets and struck at deceased with a knife, and that when he struck at deceased, he did not intend to kill him. The jury were not instructed as to manslaughter in either degree. Defendant was clearly entitled under his testimony to have the jury instructed for a lower grade of homicide than either of the degrees of murder. State v. Palmer, 88 Mo. 572; State v. Branstetter, 65 Mo. 149; State v. Banks, 73 Mo. 592; State v. Partlow, 90 Mo. 626. (3) Defendant was convicted on circumstantial evidence alone, and the court, therefore, should have properly instructed the jury in reference to this character of evidence. No such instruction was given. State v. Moxley, 102 Mo. 388. (4) Testimony was introduced to prove verbal admissions charged to have been made by defendant. A cautionary instruction as to verbal admissions should have been given by the court. State v. Moxley, 102 Mo. 390. (5) The testimony in this case is insufficient on which to base a flight instruction. The lone fact that defendant went to another point within the State several days after the homicide was committed and before he was charged with the crime for which he was tried, is not sufficient basis for an instruction to the effect that defendant fled the country, and tried to avoid arrest and trial. State v. Evans, 138 Mo. 127. (6) It was the absolute right of the defendant to have the jury determine who in fact stabbed and killed the deceased, and the court invaded that right in assuming in the instruction that defendant stabbed and killed Philip Carpenter, as charged in the information. The defendant positively denied that he stabbed the deceased. The determination of this controverted fact, by the jury, was of the utmost importance to defendant, for, if it believed defendant's testimony touching this point, he could be convicted of no crime under the information in this case. State v. Vaughan, 141 Mo. 521; State v. Lee, 182 S.W. 974. (7) Defendant sought to explain his departure from the community in which the homicide was committed, and his testimony tended to show that his purpose for going away was not to avoid arrest and trial, but that he and four others arranged previous to March 31, 1917, to go to Kansas City, Mo. Instruction H. disregarded defendant's testimony touching this point, and is not broad enough to include defendant's explanation. State v. King, 78 Mo. 558; State v. Harris, 232 Mo. 324; State v. Fairlamb, 121 Mo. 137; State v. Schmulbach, 243 Mo. 539; State v. Miller, 255 Mo. 231. (8) Under the evidence, the jury should have been required to find that defendant, if guilty of the crime, was the person who delivered the fatal blow. The record in this case discloses no evidence warranting the conviction of defendant on the ground that he was present, "aiding and abetting" in the perpetration of the alleged homicide. There being no evidence to support it, the court erred in giving the instruction. State v. Chambers, 87 Mo. 406. (9) The court erred in requiring defendant to testify as to a proceeding against him in a police court. The violation of a city ordinance is not a criminal offense and this court has uniformly held that a prosecution for the violation of a city ordinance is a civil proceeding. St. Louis v. Smith, 10 Mo. 439; Delaney v. Police Court, 167 Mo. 678; State v. Muir, 164 Mo. 610; St. Louis v. Tielkemeyer, 226 Mo. 140. Sec. 6383, R. S. 1909, therefore, does not authorize a defendant in a criminal case to be impeached by the introduction of evidence to the effect that he was convicted for the violation of a city ordinance.
Frank W. McAllister, Attorney-General, and E. M. Connor, Assistant Attorney-General, for the State.
(1) A general assignment in a motion for new trial that the court erred in failing to instruct on all the law governing the case is insufficient. Appellant must point out specifically in his motion for new trial wherein the court failed to instruct. State v. Snyder, 263 Mo. 668; State v. Kretschman, 232 Mo. 29; State v. West, 202 Mo. 128; State v. Connors, 245 Mo. 477; State v. McGarver, 194 Mo. 742; State v. Delbitt, 191 Mo. 51; State v. Conway, 241 Mo. 291; State v. Dockery, 243 Mo. 599; State v. Sykes, 248 Mo. 712. (2) Under the evidence in this case, the defendant was not entitled to an instruction on manslaughter. State v. Miller, 263 Mo. 335; State v. Alcorn, 137 Mo. 121; State v. Johnson, 129 Mo. 26; State v. Melton, 102 Mo. 683; State v. Smith, 114 Mo. 406; State v. Musick, 101 Mo. 260; State v. Jones, 86 Mo. 623; State v. Sykes, 248 Mo. 708. (3) The appellant's defense being self-defense, it was not error not to instruct the jury on circumstantial evidence. State v. Gartrell, 171 Mo. 489; State v. Donnelly, 130 Mo. 642; State v. Fairlamb, 121 Mo. 137; State v. Robinson, 117 Mo. 649. (4) The evidence was sufficient to give an instruction on flight. State v. Lewkowitz, 265 Mo. 628; State v. Brooks, 92 Mo. 556; State v. Smith, 114 Mo. 416; State v. Griffin, 87 Mo. 608; State v. Walker, 98 Mo. 95; State v. Asa Sparks, 195 S.W. 1031. (5) The evidence in this case fully supports the giving of the instruction as to accessories before the fact. State v. Crabb, 121 Mo. 554; State v. Walker, 98 Mo. 95; State v. Nelson, 98 Mo. 414; State v. Miller, 100 Mo. 606; Kelly's Criminal Law and Procedure (3 Ed.), sec. 47. (6) Prosecutions by a city are not criminal cases. They are civil in form only and of a quasi-criminal character. State v. Gordon, 60 Mo. 383; In re Miller, 44 Mo.App. 127; Kansas City v. Clark, 68 Mo. 588; Carrollton v. Rohmberg, 78 Mo. 547; St. Louis v. Shoenbusch, 95 Mo. 621. The municipality is the agent of the city and a prosecution by the city is a bar to a prosecution by the State for the same offense in the State courts. Lynch v. Commonwealth, 35 S.W. 264; 1 Dillon's Municipal Corporations (4 Ed.), secs. 367-368; State v. Simonds, 3 Mo. 413; State v. Cowan, 29 Mo. 330; State v. Thornton, 37 Mo. 360; State v. Gordon, 60 Mo. 383. The courts of this State have always held that a conviction in a municipal court is a bar to the subsequent prosecution by the State for the same offense. State v. Simonds, 3 Mo. 414; State v. Cowan, 29 Mo. 330; State v. Hannah Thornton, 37 Mo. 361; Pilot Grove v. McCormick, 56 Mo.App. 530; State v. Freeman, 56 Mo.App. 579.
Defendant, tried in the circuit court of Cooper County, for murder in the first degree, for that, as it was charged in the indictment, he stabbed and killed one Philip Carpenter, was found guilty and his punishment assessed at death. From this conviction and the sentence bottomed thereon, he has, after the conventional motions, appealed.
The facts of this homicide as the record discloses them run about thus: On the night of March 31, 1917, Philip Carpenter (hereinafter for brevity called deceased), and one Louis Orr, both of whom were printers, were together in the town of Boonville. After having taken a number of drinks of liquor, until deceased was somewhat under the influence thereof, and until Orr, as he himself admits, was very drunk, they started about 11:30 o'clock at night down a certain alley in the town of Boonville, along which, it seems some considerable portion of the negro population of Boonville resides. After they had proceeded some little distance Orr stopped, but Carpenter kept going until he had reached a point somewhere near the center of the alley. Walking in front of deceased as he traversed this alley was one Stella Goosberry, a negress, who, it seems, lived with her husband in a house situate somewhere in the vicinity. This negro woman, who, as stated, was in front of deceased some little distance, and considerably in front of Orr, who had stopped, met about the center of the alley two negro men, one Ed. Porter, and defendant. This negress seems to have known both Porter and defendant; the former intimately, and the latter only casually. Upon meeting Porter and defendant, she complained to Porter that some men were following her, and asked him to stand at the point where she had met him, until she reached her home. Almost immediately after this, and while the three negroes were still near each other, deceased came up, and walking between Porter and the negro woman, said to the latter "is there anything doing?" Thereupon Porter struck, or struck at, deceased (it does not clearly appear which); the two engaged in a fight, and the negro woman ran. This woman was a witness in the case and the facts so far related turn almost wholly upon her testimony.
Shortly after this, Orr, who had accompanied deceased into the alley came running out and stated to a man whom he met, that deceased was in trouble down the alley. The alarm spread and certain persons went down the alley, and found deceased lying therein, stabbed and fatally wounded. A knife had been driven into the back of his neck, at the point of juncture of the head with the spinal column, almost severing his head from his body. From this wound he...
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