State v. Snead

• Decision Date: 23 June 1914
• Docket Number: No. 18119.,18119.
• Citation: 259 Mo. 427,168 S.W. 602
• Parties: STATE v. SNEAD.
• Court: Missouri Supreme Court

168 S.W. 602

259 Mo. 427

STATE v. SNEAD.

No. 18119.

Supreme Court of Missouri, Division No. 2.

June 23, 1914.

1. HOMICIDE (§ 340)—APPEAL—ERROR FAVORABLE TO PARTY COMPLAINING.

Any error in instructing, when the facts did not demand it, on manslaughter in the fourth degree, being in his favor, could not be complained of by defendant, convicted of murder.

2. HOMICIDE (§ 336)—HARMLESS ERROR—REMARKS AS TO EVIDENCE.

Though the court was in error in stating that there was no certain evidence of deceased having stolen money of defendant's cousin, this was harmless, as, admitting she had stolen and refused to return it, this would not palliate or mitigate his crime of thereupon killing her.

Appeal from Criminal Court, Jackson County; Ralph S. Latshaw, Judge.

Charles Snead was convicted of murder, and appeals. Affirmed.

At the January term, 1913, of the criminal court of Jackson county the defendant was convicted of murder in the second degree for the killing of Martha Kimball with a pistol, and, having had assessed against him as punishment therefor imprisonment in the penitentiary for a term of 99 years, has, after the usual motions, appealed to this court.

On the part of the state the testimony showed that on the evening of December 26, 1912, the deceased and another colored woman by the name of Lottie Simmons, together with several colored men, six or seven in number, were at the rooming house of deceased and the Simmons woman at 1019 East Fifth street in Kansas City. At about the hour of 9 o'clock the defendant, Snead, in company with his cousin, Walter Snead, and one Rob Johnson, arrived at the above address. The evening was spent by all present in drinking and dancing. About 11:30 the deceased, Lottie Simmons, and one Holloway left the house for a walk, going toward Independence avenue. This walk was suggested by deceased, who said, "The boys are getting pretty drunk; we had better get away; when we come back they will be gone." Deceased, Holloway, and the Simmons woman, after walking almost to Independence avenue, turned about and started back toward the rooming house. Shortly after, and when at the corner of Pacific and Gillis streets, they met defendant, his cousin, and Johnson. Defendant, holding his revolver at his side, walked up and said to the deceased, "Martha, give this fellow [meaning his cousin] his money." The deceased replied, "Charlie, I haven't got any money, honest; search me," at the same time holding up both hands. Thereupon the defendant placed the revolver against her left side and fired. Deceased fell to the ground exclaiming, "Oh! oh!" and while on the ground defendant stood over her and fired two more shots into her body; death following immediately. Defendant walked down the street, jumped over a fence, and ran. A post-mortem examination disclosed three bullet wounds in the body of deceased, either of which, the proof shows, would have been fatal.

One witness for the state testified that when defendant, Walter Snead, and Johnson left the house of deceased the question was asked by one of them, "What did you lose?" also some remark was made by one of them about a gun. While at the house there had been no trouble or quarrel of any kind between defendant and deceased.

When arrested on the night of December 30th, following the homicide, defendant gave his name as "Will Davis." He also stated that he lost the pistol in getting over the fence at Fifth and Gillis streets. On cross-examination of the officers making the arrest of defendant they stated that in the conversation with defendant in which he told them of the killing defendant said that deceased had stolen some money from his cousin, Walter Snead, and when he asked her about it and asked her to give it back she drew a knife and attempted to cut him, and he then shot her.

The state also offered testimony showing that following his arrest defendant made a statement with reference to the shooting. This statement was offered in evidence by the state, but later withdrawn.

Defendant did not testify in his own behalf; neither did he offer any testimony.

The court instructed the jury on murder in the second degree, manslaughter in the fourth degree, the presumption of innocence, reasonable doubt, self-defense, and the credibility of witnesses.

John T. Barker, Atty. Gen., and Ernest A. Green, Asst. Atty. Gen., for the State.

FARIS, J. (after stating the facts as above).

Defendant is not represented here by counsel. Nevertheless, as in duty bound, the statute so admonishing (section 5312, R. S. 1909; State v. Maggard, 250 Mo. 335, 157 S. W. 354), we have carefully examined all matters of alleged error subject to review upon the record, as well as such as are properly preserved for our review in the bill of exceptions. Turning to the motion for a new trial, we note that defendant urges there eight assignments of error, covering those matters which in practice have become indigenous to a motion for a new trial, and which have been facetiously denominated "the usual errors of the court," as well as others below specifically mentioned.

I. Coming to an examination of these we note that the learned trial court instructed on manslaughter in the fourth degree. We doubt if, upon the facts shown by the evidence, he need to have done so. State v. Clay, 201 Mo. loc. cit. 687, 100 S. W. 439; State v. Kennedy, 207 Mo. 528, 106 S. W. 57. But since defendant was convicted of murder in the second degree, and not of manslaughter, and since both on the facts, as well as weighing the matter by the sequel—i. e., by the grade of homicide of which defendant was convicted—defendant was in no wise hurt by this instruction, we will not bottom error on it. State v. Baker, 246 Mo. loc. cit. 375, 152 S. W. 46; State v. Dunn, 80 Mo. 681. If it was error, and we neither say it is nor believe it is under the facts, it was an error in favor of defendant, of which naturally he may not complain. State v. Pohl, 170 Mo. 422, 70 S. W. 695.

II. In the course of the argument of the case ...