State v. Moore

• Decision Date: 08 May 1900
• Citation: 56 S.W. 883,156 Mo. 204
• Court: Missouri Supreme Court
• Parties: STATE v. MOORE.

56 S.W. 883

156 Mo. 204

STATE v. MOORE.

Supreme Court of Missouri, Division No. 2.

May 8, 1900.

CRIMINAL LAW — HOMICIDE — EVIDENCE — INSTRUCTIONS.

1. The fact that the prosecuting attorney had a deposition taken at the preliminary hearing in his possession prior to the trial does not render the deposition inadmissible.

2. It is in the discretion of the court to permit a witness to testify, though he has heard part of the testimony of other witnesses.

3. Where accused offers evidence of his admissions of the homicide, to which the state makes no objection, accused is not entitled to show, as part of the same conversation, self-serving declarations as to his reasons for killing deceased.

4. Accused, who had previously notified deceased and his wife to leave his farm, killed deceased on his attempt to enter the premises. Held, that the admission in evidence of deceased's statements of his intention to find another place, made to his wife after he had notice to leave, and out of the presence of accused, was harmless error.

5. The admission of hearsay evidence did not constitute reversible error, where the same testimony was afterwards given on cross-examination in response to questions asked by the counsel of accused.

6. Failure to define "in the heat of passion," as used in the definition of murder in the first degree, was not reversible error, where the jury found the accused guilty of murder in the second degree.

7. At the request of the state the jury were instructed that a doubt, to authorize an acquittal, should be a reasonable doubt, fairly arising from the evidence as a whole, and that a mere possibility that the defendant might be innocent would not warrant an acquittal. At the request of the accused the jury were instructed that it is not enough to justify a verdict of guilty that there may be a strong suspicion, or even a strong probability, of the guilt of defendant; that the law requires proof by legal and credible evidence, — such as, when all considered, produces a clear conviction of the defendant's guilt beyond a reasonable doubt; that if the jury entertain any reasonable doubt as to whether defendant was excusable and justified in the acts complained of, or if any one of the jury, after having considered all the evidence, and after a consultation with his fellow jurymen, entertains a reasonable doubt, accused should be acquitted. Held, that such instructions were not conflicting.

8. An instruction on self-defense given by the court and an instruction given at the request of accused were alike, except that the requested instruction contained a definition of "reasonable doubt" not contained in the court's instruction. Held, that the instructions were not conflicting.

Appeal from circuit court, Dunklin county; J. L. Fort, Judge.

John W. Moore was convicted of murder, and appeals. Affirmed.

At the request of the state the court gave the following instruction: "No. 6. The court instructs you that the burden of proving the defendant's guilt beyond a reasonable doubt rests upon the state, and if, upon the evidence considered as a whole, the jury should entertain a reasonable doubt as to defendant's guilt, you should give him the benefit of such doubt and find him not guilty; but a doubt, to authorize an acquittal on that ground alone, should, as stated, be a reasonable doubt, and one fairly arising from the evidence as a whole, and the possibility that the defendant may be innocent will not warrant you in acquitting him on the ground of reasonable doubt." At the request of defendant the court gave the following instruction: "No. 2. The court instructs the jury that the defendant is, in law, presumed to be innocent until his guilt is established by such evidence as will exclude from reasonable doubt; but it is not enough, in a criminal trial, to justify a verdict of guilty, that there may be a strong suspicion or even a strong probability of the guilt of the defendant, but the law requires proof by legal and credible evidence of such nature as that, when all considered, it produces a clear conviction of the defendant's guilt beyond a reasonable doubt, — that the defendant is guilty as charged. So, in this case, if the jury entertain any reasonable doubt of defendant's guilt, they should acquit him; or, if they entertain any reasonable doubt as to whether he was excusable and justified in the acts complained of, they should acquit him; or if one of the jury, after having considered all the evidence and having consulted with his fellow jurymen, should entertain such a reasonable doubt, the jury cannot in such case find the defendant guilty."

The defendant was indicted for murder in the first degree at the July term, 1898, of the circuit court of Dunklin county. He was duly arraigned at the January term, 1899, and his plea of not guilty entered. At the same term he was tried and convicted of murder in the second degree, and his punishment assessed at 99 years in the penitentiary. His motions for new trial and in arrest were filed, heard, and overruled, and he appealed to this court. The indictment is in the approved form, and is in all respects sufficient. Indeed, it is not attacked on this appeal. The record proper in other respects is without error. The evidence disclosed the following state of facts: On the 9th day of October, 1897, the defendant shot and killed John Thorn, alias John Vaughan, near the town of Holcomb, in Dunklin county, of this state. The defendant was a widower about 62 years of age, and lived on a farm. He had employed deceased, Thorn, and the latter's wife, to keep house and do other work for him. A disagreement arose between deceased and defendant, and defendant desired deceased and his wife to leave his premises. On Friday before the homicide, on Saturday, defendant locked his house, so that deceased and his wife could not enter. They slept that night at Russell Rice's. Saturday morning deceased left, to return a horse he had borrowed from a neighbor named Watts. He owned a horse, but he had loaned or hired it to a Mr. Case to work on the levee. He got his own horse about noon, and led it to the residence of defendant, Moore, whither his wife had returned from Rice's house that morning. Mrs. Thorn (or Vaughan) testified that when her husband returned he came into the principal inclosure, and led his horse to the lot gate, and was at the gate when he was shot. She did not see defendant, Moore, but heard him say something which she could not distinguish, and thereupon her husband answered, "Mr. Moore, we are not trying to bulldoze over you." She saw her husband take hold of the gate to the lot with one hand, and he led the horse with the other. He stepped back two steps, and then the gun fired; and immediately she looked and saw Moore, the defendant, take the gun from his shoulder. He was standing about midway of the barn, in the lot. Her husband sprang up when he was shot, and said to her, "Come here quick." He turned and walked about 20 feet, and fell. He died almost instantly. The evidence disclosed no arms on the person of deceased, and his wife testified that he had never owned a pistol during their marriage. Moore left immediately after firing the shot. The testimony of James Dye tended to show: That for three hours prior to the killing he and his son-in-law, Dobbins, remained with defendant at his barn, at his request, to await the return of deceased, to see what deceased would do when he came back. When they saw deceased coming, leading his horse, defendant got up and stepped across the hall of the barn, and reached into the saddle room and got his gun. He then went into the barn lot. Before deceased opened the lot gate, defendant said to him, "I don't want you in here." Deceased opened the gate and got partly in the lot, and deceased said to him, "Are you going to stay out?" and deceased answered, "We are not bulldozing you;" and thereupon he heard the report of the gun, and saw deceased turn and call his wife. Moore saddled his horse and rode off, and witness and his son-in-law, Dobbins, went over to where deceased lay dead on the ground. He was shot through the breast. When deceased was shot he had one hand on the gate, and held his horse's bridle in the other. A. L. McDonald testified: That he was having some work done on the St. Francois levee, and defendant was to furnish him a team and a driver. That he employed deceased to hold the plow. On or about the 3d or 5th of October he heard a wordy controversy between deceased and defendant as to the right of deceased to assist in the plowing with defendant's team. Defendant forbade him to touch the plow, and deceased appealed to witness, who told deceased he would have to give way. At that deceased said he could slap the defendant's jaws, and would do it, but for his gray hairs. That ended the dispute at that time. Deceased left the levee, and about two hours later returned and demanded a settlement with defendant. Defendant denied he owed him anything. Deceased threatened to sue him if he did not settle, whereupon McDonald again acted as mediator. Took the accounts, and there was a balance due deceased of 35 cents on the running account, and his wages for three or five days at 75 cents or $1 per day. Thereupon defendant said, "You wait till night, and I will get Willie [his son] and settle with you, if you will settle." Deceased said, "You have been trying for a week to beat me out of my job, and have acted a scoundrel with me," whereupon Moore, the defendant, drew up his fist as if to strike, and deceased said, "Hit." Defendant said, "No; you hit." Deceased said: "No; don't let your d__d fist fool you. Hit. I think too much of gray hairs to hit you the first lick, but if you hit me I will wear the ground up with you." The difficulty ended with this. In the evening of that day defendant beckoned McDonald aside and said, "I want to talk to you," and they went about 40 feet and sat down on a log. Defendan...