State v. Shock

Citation68 Mo. 552
PartiesTHE STATE v. SHOCK, Appellant.
Decision Date31 October 1878
CourtUnited States State Supreme Court of Missouri

Appeal from Callaway Circuit Court.--HON. G. H. BURCKHARTT, Judge.

Warner Lewis for appellant.

1. Instruction four is a literal copy of the sixth instruction in State v. Jennings, 18 Mo. 442. That case and the one at bar are dissimilar, and as that instruction is an innovation of the common law, the ruling ought not to be extended. In every killing which is not excusable or justifiable homicide, this instruction may with equal propriety be given, and if its latitude be not circumscribed, then by the phrase “other felony” in Wag. Stat., sec. 1, p. 445, relating to crimes and punishments, section 2 of the same article would be rendered nugatory, for a conviction of murder in the first degree might be had in every offense intended to be included in section 2. This instruction is inconsistent with the other instructions given for the State. Malice, ill-will, premeditation, &c., the constituent elements of murder in the first degree, are totally ignored. 2. The affidavit of the juror was offered, not for the purpose of showing misconduct on the part of any of his fellows, but for the purpose of showing mistake on his own part; and therein the case differs from any heretofore decided by this court.

Edwin Silver for appellant.

The instruction is wrong. It ignores the instrument with which and the manner in which the whipping of the child was done. The evidence shows that Shock was in loco parentis, and, therefore, could lawfully chastise the child. The killing was, therefore, manslaughter, unless it was done with an instrument and in a manner likely to produce death; and because the instruction ignores these elements it is defective and vicious. Under the instruction, whipping with a small switch or an instrument altogether unlikely to produce death, if death ensued, would warrant the jury in finding a verdict of murder in the first degree. The instruction is simply to the effect that if great bodily harm was intended, and death ensued, it must be murder in the first degree, no matter if the whipping was done with the most harmless instrument. See East Pleas of Crown, p. 261; Foster Crim. Law, p. 262, § 4. The evidence shows the instrument to have been a stick about the size of one's thumb at one end, and several feet long, certainly not a dangerous weapon; but even if it were such, still its character and the manner of the beating should not have been ignored in the instruction. State v. Mitchell, 64 Mo. 191; State v. Linney, 52 Mo. 42. It was altogether a question for the jury whether the instrument with which the killing was done was a dangerous weapon, or the instruction is vicious because in conflict with the Sloan case, 47 Mo. 615.

It ignores willfulness, deliberation, &c., and it is contended that this is no error, as the defendant was committing another felony, viz: great bodily harm, and the Green case, 65 Mo. 648, and the Jennings case, 18 Mo. 435, are relied on in support of this position. In the Green case the defendant was guilty of a felony in resisting the officer who had a warrant for his arrest on a charge of felony, and the instruction was, therefore, correct for that reason. See Wag. Stat., § 18, p. 479. The statute defining murder in the first degree evidently contemplated that the “other felony” should be one different from violence to or upon the person killed; otherwise we could not have any murder in the second degree, or any of the degrees of manslaughter, for murder in the second degree, or manslaughter involves an assault or great bodily harm to the person injured, and, death ensuing therefrom, we would always have murder in the first, and never murder in the second degree or manslaughter. So the mere attempt to do great bodily injury without deliberation, willfulness or intent, would always make murder in the first degree. Why require an instruction to contain willfulness, deliberation, &c., in defining murder without the elements of great bodily harm, and on the other hand require neither of them where that element is made a part of the instruction? The result is simply this, as every murder in the first degree involves great bodily harm, there need only be an instruction on that element, and willfulness, premeditation, &c., may be ignored in every case. The boundaries and distinction between murder in the first and second degrees cannot exist if the elements of premeditation, willfulness, &c., are ignored. We, therefore, contend that the “other felony” in the statute must be other than violence to the person injured. State v. Sloan, 47 Mo. 614; People v. Butler, 3 Parker's Crim. cases 377; People v. Rector, 19 Wend. 605. In the Rector case Judge Bronson supports the view above contended for, while Judge Cowen takes a different view, holding that if the defendant did not intend death, then it was a felony within the contemplation of the statute. But under this view murder in the first and second degree would be confused. A man under circumstances that would be but murder in the second degree, might intend great bodily harm, and how could it be determined which degree of murder it would be. Judge Bronson, a name of equal if not of greater weight in criminal law, pronounces in favor of the view we contend for. So does the court in 3 Parker's Crim. cases, 377. So does this court in the Sloan case, which overruled the Jennings case, and was the law till the Green case; but the instructions in the Green case were good for the other reason above stated.

J. L. Smith, Attorney-General, for the State.

The thirteenth instruction was a correct definition of the crime of murder in the first degree under our statute and the cases construing it. Section 1, p. 445 of Wag. Stat. provides that “every murder which shall be committed * * in the perpetration or attempt to perpetrate any felony, etc., shall be deemed murder in the first degree.” Section 33, p. 450 of Wag. Stat., makes the person by whose act or procurement great bodily harm is caused to another, guilty of a felony. So that when the defendant beat the deceased with “intent to do him great bodily harm,” he was guilty of a felony, and if the deceased died from the injuries received during such whipping, the defendant is guilty of murder in the first degree. State v. Jennings, 18 Mo. 435; State v. Green, 66 Mo. 631. But the defendant now insists that this instruction cannot apply here, because he stood in loco parentis to the deceased, and therefore had a right to chastise him; and that if he died from the effect of such chastisement, the crime was manslaughter only. It will be sufficient to state that not a scintilla of evidence appears tending to show that the deceased was a son, or a ward, or a pupil of the defendant, nor any other facts which show the defendant to have stood in loco parentis to the deceased. The defendant was on the stand in his own behalf, and if any such relation had existed, could very easily have stated it.

L. W. McKinney for the State.

Instruction No. 13 given for the State is the law. State v. Jennings, 18 Mo. 435; State v. Green, 66 Mo. 631. Under our law every homicide committed in the attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be deemed murder in the first degree. The attempt to do great bodily harm, is, under our statutes, a felony.

HOUGH, J.

At the May term, 1878, of the circuit court of Callaway county, the defendant was indicted for murder in the first degree for the killing of one Robt. Scott. At the November term following, he was tried and found guilty and sentenced to be hanged. Stay of execution was awarded, and the case has been heard here on appeal. The evidence on the part of the State tended to show that on the 6th day of March, 1878, the defendant beat the deceased, who was a boy between five and six years of age, with a piece of sycamore fishing-pole, about three feet long and one and a half inches in diameter, for some minutes, accompanying his beating with oaths; that he left the room in which he was beating the boy, went into the yard, procured a piece of grapevine about one and one-fourth inches in diameter, returned to the house and resumed the beating, which lasted in all about fifteen minutes. During the beating the child did not scream or cry, but groaned and moaned, and after several days, died of the injuries so received at the hands of the defendant. An inquest was held, at which the body was examined. The child's head was found to be covered with bruises, its back beaten to a jelly and its skull fractured. On the part of the defendant evidence was introduced tending to show that the deceased was very weakly and sickly; that the defendant did not beat it on the day named, and that the wounds on its head were caused by its falling down stairs. The deceased was a son of a cousin of the wife of the defendant, and it appears that it had been at the house of the defendant for about two months, but whether as a visitor or otherwise, the record does not show.

1. JUROR: impeachment of verdict.

In support of the motion for a new trial an affidavit of one of the jurors was filed, which stated in substance, that while the jury were considering their verdict, he was of the opinion that the case was not one in which capital punishment should be inflicted, but he was induced to believe that the court had the power to inflict a less degree of punishment; that he and others of said jury were opposed to rendering a verdict in said case that would result in the death of the defendant. It will be sufficient to say on this point that a juror will not be allowed to impeach his verdict on the ground that he would not have found the defendant guilty if he had known that the punishment fixed by law for the crime charged was death. The nature of the punishment had nothing to do with the guilt or innocence of the defendant.

2. MURDER.

The only question of importance presented for our...

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