State v. Privitt

• Citation: 175 Mo. 207,75 S.W. 457
• Parties: STATE v. PRIVITT.
• Decision Date: 09 June 1903
• Court: United States State Supreme Court of Missouri

75 S.W. 457

175 Mo. 207

STATE v. PRIVITT.

Supreme Court of Missouri, Division No. 2.

June 9, 1903.

HOMICIDE — INFORMATION — SUFFICIENCY — OPINION EVIDENCE—HYPOTHETICAL QUESTIONS—INSANITY —EVIDENCE — ADMISSIBILITY — INSTRUCTIONS.

1. An information charging accused with murder, and averring that he then and there, with a loaded shotgun, feloniously, willfully, and deliberately, and of malice aforethought, did shoot and strike deceased, giving to him a mortal wound, of which deceased did then and there, in Sullivan county, instantly die, is not invalid because not stating when or where, or with what instrument, the mortal wound was given, or that the wounding was felonious.

2. A hypothetical question, propounded to an expert witness, calling for an opinion as to accused's insanity, need not be predicated on all the evidence bearing on the question of insanity, as the state, in putting a hypothetical question, may assume the facts in accordance with its theory, and need not state all the facts as they actually existed.

3. A hypothetical question is not improper because it includes only a part of the facts in evidence.

4. Where an expert witness has heard all the evidence in regard to accused's mental condition, except testimony which was stated to him, and there is no conflict in the evidence, he may express his opinion as to such mental condition at the time of a homicide, predicated on the evidence as he heard it and as stated to him; but the better practice, where the facts are controverted or are not entirely clear, is to put to the expert hypothetical questions based on the facts claimed to have been proven, that the jury may know the circumstances on which the opinion is based.

5. Where, in a homicide case, insanity is interposed as a defense, a trust deed executed by accused, four days after the homicide, to his attorney, is admissible as tending to show sanity at the time of the homicide.

6. Where accused waited for weeks after he had learned of the intimacy of deceased with his wife, and after he had entered into an armistice, and deceased had been assured by accused that he need not fear harm from him, before he killed deceased, an instruction was not erroneous because it eliminated from the jury's consideration any question of a less grade of homicide than murder in the first degree.

7. Where the court has properly instructed, under the evidence, that accused was either guilty of murder in the first degree or not guilty of any offense, an instruction stating under what circumstances a person would be guilty of murder in the second degree or manslaughter, when there were no such issues in the case, is not reversible error.

8. Where it is not claimed a homicide was in self-defense, testimony that deceased had gone armed in the expectation of meeting accused, and had stated he might use the weapons on accused, is inadmissible.

Appeal from Circuit Court, Sullivan County; John P. Butler, Judge.

Newton J. Privitt was convicted of murder in the first degree, and he appeals. Affirmed.

A. W. Mullins and Wilson & Clapp, for appellant. Edward C. Crow, Atty. Gen., and C. D. Corum, for the State.

BURGESS, J.

On the 6th day of January, 1902, there was lodged in the office of the clerk of the circuit court of Sullivan county, by the prosecuting attorney of said county, an information charging the defendant, Newton J. Privitt, with murder in the first degree in shooting and killing, with a double-barrel shotgun, at said county, on the 26th day of November, 1901, one John W. Wolf. Thereafter in April, 1902, defendant was put upon trial in said court, and convicted of murder in the first degree. He appeals.

There is no dispute as to the facts which led up to the homicide, which, briefly stated, are as follows: Newton Jasper Privitt, the defendant, is a married man and the father of several children. Some time during the latter part of June, 1901, the defendant received an anonymous communication suggesting that his wife was unfaithful to her marital vows, and that their nearest neighbor, one Page Weston, was her paramour. On receipt of this communication, the defendant confronted his wife with its contents, and she confessed that she had been guilty of criminal intimacy with John W. Wolf, the deceased, but denied that she was guilty of having committed this offense with Weston. She admitted that her liaison with Wolf had existed for about 10 years. The defendant began to consider and to discuss with his friends what course he should pursue as to Wolf, and whether he and his wife should thereafter live apart. He sent word by his quondam brother-in-law to Wolf that he must leave the country at once. Wolf acquiesced to this, and immediately began to prepare for his departure. It seems that Wolf was not able to so arrange his affairs as to be able to leave on the day fixed by defendant for his departure, and an extension of time was granted him. Wolf, after having completed his arrangements, left Sullivan county and went to Oklahoma. He had not been gone long until defendant learned from his wife that she had also committed adultery with another person, to wit, Page Weston; he being the person referred to in the anonymous communication. Prior to acquiring this information the defendant had made numerous threats against the life of Wolf; but, on learning of his wife's further degradation, he stated that "he could not kill all the people in the neighborhood." He then arranged for a meeting with Wolf's wife, and requested her to send word to her husband that he might return home, and the defendant gave Mrs. Wolf his word of honor that no harm should come to her husband. Accordingly Wolf returned home, after having been absent in Oklahoma for a period of about two weeks. Soon after Wolf's return home, the defendant again armed himself, and began renewing his threats against the life of Wolf; but, being informed that Wolf was also armed, and prepared to meet any assault that defendant might make upon him, he then requested his informant to see Wolf, and to advise him that if he (Wolf) would never come to the defendant's home again, would never speak to defendant's wife or his minor children, and lay aside his arms, the defendant would also lay down his arms and their trouble would be settled. To this proposition Wolf assented, and the defendant, on being advised of Wolf's consent, said, "All right; that settles it." Thereupon another armistice was declared. This was during the month of July. The record does not disclose that either party failed to carry out this agreement, or that there was a renewal of hostilities in any manner, until the 26th day of November, 1901. On that day the deceased, accompanied by his wife and two children, was on his way to the town of Osgood. Their way ran past the farm which was owned by the defendant, and on which he was then building a new house. Immediately after the deceased and his family had passed the point where defendant and his men were engaged in digging a well, the defendant made inquiry of his son whether it was not deceased who had passed. At first his son was uncertain as to the identity of the persons passing; but he made a closer observation, and then assured his father that it was Wolf and his family who had passed. The son and the father then held a whispered conversation. The defendant immediately repaired to his home, which was about one-quarter of a mile distant from the well, and procured his shotgun and returned to the well. He ordered the removal of the man who was at the bottom of the well therefrom, and then ordered his men to unhitch the horse which was being used to draw dirt from the well, and said: "I will show him how he will break up my family." He then mounted the horse, which had been unharnessed by his direction, and rode rapidly in pursuit of the deceased, and overtook him about three-quarters of a mile from the well. He called on the deceased to halt, but, before the deceased had even time to turn his body, the defendant shot him in the back, inflicting a mortal wound. The deceased either attempted to get out of the wagon, or fell out, whereupon defendant dismounted, and walked to where deceased was, and emptied the other barrel of his gun into the head of the deceased, tearing the whole cranium away. He then remounted his horse, returned to the well, and advised the persons there that he had accomplished his purpose, disappeared, and was gone for several days.

The defendant interposed the plea of insanity. The evidence on his part tended to show that, after he had been advised of his wife's shame, "he was melancholy in mind and depressed in spirit; that he was not given to the levity and jocosity that had been his wont."

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

"(1) The defendant in this case stands charged by information with murder in the first degree; that is to say, the defendant, Newton Jasper Privitt, stands charged with having feloniously, willfully, premeditatedly, deliberately, and of his malice aforethought shot and killed John Wolf, at the county of Sullivan, on the 26th day of November, 1901; and under the evidence in this case you will either convict the defendant of murder in the first degree, and so state in your verdict, or you will acquit him.

"(2) It is the duty of the court to instruct you on all questions of law arising in this case, and it is your duty to receive such instructions as the law of the case, and find the defendant guilty or not guilty, according to the law as declared by the court and the evidence as you have received it under the instructions of the court.

"(3) If the jury believe and find from the evidence in this cause that the defendant, Newton Jasper Privitt, in the county of Sullivan and state of Missouri, on or about the 26th day of November, 1901, did feloniously, willfully, deliberately, premeditatedly, and of his...