State v. Spaugh

• Decision Date: 20 November 1906
• Parties: STATE v. SPAUGH.
• Court: Missouri Supreme Court

98 S.W. 55

200 Mo. 571

STATE v. SPAUGH.

Supreme Court of Missouri. Division No. 2.

November 20, 1906.

1. HOMICIDE—QUESTION FOR JURY—CONSPIRACY.

In a prosecution for murder, held, that there was ample evidence of conspiracy between defendant and others who killed deceased to warrant submission to the jury.

2. SAME—QUESTION FOR JURY.

In a prosecution for murder, held, that there was sufficient evidence to go to the jury tending to show that defendant himself was the slayer of deceased, irrespective of any question of conspiracy.

3. CRIMINAL LAW—EVIDENCE—OTHER CRIMES.

Proof of another crime than the one for which defendant is on trial is competent, when it tends to establish the motive, intent, or absence of mistake or accident, or the identity of the person charged with the commission of the crime on trial.

4. HOMICIDE—EVIDENCE—ADMISSIBILITY.

In a prosecution for murdering a sheriff while arresting defendant, evidence as to an assault made by defendant upon a third person a few minutes before the murder, and that the sheriff had been told by witness of such assault by defendant, and that witness informed the sheriff that he thought defendant had put out such person's eye, and that his face was bloody, was admissible to show that deceased had reasonable cause to suspect that a felony had been committed, authorizing him to arrest defendant without warrant.

5. CRIMINAL LAW—TRIAL — EVIDENCE — OBJECTIONS.

In a criminal prosecution, an objection to testimony that it is incompetent amounts to no objection.

6. SAME—CONFESSIONS.

In order to exclude evidence of a prisoner's confession, it must appear affirmatively that some inducement to confess was held out to him by or in the presence of some one having authority.

7. HOMICIDE—APPEAL—HARMLESS ERROR—ADMISSION OF EVIDENCE.

In a prosecution for murder, a witness was permitted to testify that a short time prior to the murder he had been kicked by defendant. Subsequently the court instructed the jury that this evidence was withdrawn, and that it should not consider the same. Held, that, if the evidence was irrelevant it was harmless.

8. WITNESSES—CREDIBILITY—IMPEACHMENT— EVIDENCE TO SUSTAIN.

Where defendant on cross-examination of a witness elicited that witness had been put in jail on the day the alleged offense was committed by defendant, and was released and again put in jail, when he gave a sworn statement, the purpose of defendant being to impress the jury that witness had been released provided he would testify for the state, it was proper to permit the prosecuting attorney to rebut such charge by testifying as to why witness was put in jail, and that no inducements were held out to him to get him to make the statements.

9. CRIMINAL LAW—EVIDENCE—ADMISSIBILITY —FLIGHT OF ACCUSED.

In a prosecution for murder, it was proper to permit the state to show that defendant and his brother armed themselves and fled to the mountains and for six days evaded arrest, and that when finally located they resisted to the utmost, and when captured had in their possession a shotgun, rifle, revolver, and a quantity of ammunition.

10. SAME—SUBSEQUENT INCRIMINATING CIRCUMSTANCES.

In a prosecution for murder, it was proper to permit the state to show that very soon after the homicide, and as defendant was escaping, he shot at a negro, who was running towards him; it being obvious that defendant suspected that the negro was pursuing him.

11. CRIMINAL LAW—INSTRUCTIONS—REASONABLE DOUBT.

An instruction that the reasonable doubt of the guilt of defendants which would warrant the jury in acquitting them on the ground of reasonable doubt of their guilt should be a substantial doubt of their guilt, upon a full and fair consideration of all the evidence, facts, and circumstances in the case, and not a mere possibility that they may be innocent, was not objectionable.

12. HOMICIDE — APPEAL — THEORY OF LOWER COURT.

In a prosecution for murder, it appeared that all through defendant's testimony he and his counsel alluded to and spoke of deceased as the sheriff, whom defendant knew. Defendant himself testified to his attempt to get money to pay his fine to the sheriff for an assault for which the sheriff was about to arrest defendant at the time of the homicide. Defendant's counsel did not ask the court to submit the issue of defendant's knowledge of the official character of deceased to the jury, but, on the contrary, assumed that defendant knew such fact. Held, that defendant could not, on appeal, put the trial court in error by shifting his position and insisting that the court erred in not submitting to the jury the question as to defendant's knowledge of the official character of deceased.

13. SAME—TRIAL—QUESTION FOR JURY—MANSLAUGHTER.

In a prosecution for murdering a sheriff, it appeared that deceased had been called upon as a police officer and had been informed that defendant had assaulted and put out the eye of a person named. It was clear that he had reasonable ground of suspicion that defendant had committed a felony, and that he was fully authorized to arrest defendant without a warrant. Defendant knew that deceased was sheriff of the county, and his whole testimony showed apprehension that deceased had come to arrest him for the assault. Defendant a few minutes previous to the homicide had threatened to kill any person who came to arrest him. Held, that there was no error in refusal of the court to instruct on manslaughter in the fourth degree.

14. SAME.

Where defendant in a prosecution for murder did not pretend that he killed deceased on account of any lawful provocation and in the heat of passion, but, on the contrary, testified that he did not kill deceased, made no threats against his life, and did not know that he had been shot until some time afterwards, there was no error in refusing to instruct on manslaughter in the fourth degree.

15. SAME—MURDER IN FIRST DEGREE—DELIBERATION.

In a prosecution for murdering a sheriff while attempting to arrest defendant, where the evidence showed that defendant had threatened to kill any one who attempted to arrest him, and that on the approach of the sheriff defendant retreated into the house, where he armed himself with a deadly weapon, deliberation was sufficiently shown to warrant an instruction on murder in the first degree.

16. SAME — APPEAL — HARMLESS ERROR — INSTRUCTIONS.

Where defendant was convicted of murder in the first degree, he cannot complain that the court instructed the jury on murder in the second degree, the instruction complained of being more favorable to him than it should have been.

17. SAME—TRIAL — INSTRUCTIONS—DELIBERATION.

The word "deliberately" was properly defined in an instruction that "it does not mean brooded over, considered, reflected upon for a week, day, or an hour, but it means an intent to kill, executed by a person not under the influence of violent passion suddenly aroused by some unlawful provocation, but in furtherance of a formed design to gratify a feeling of revenge, or to accomplish some other unlawful act. And the passion here referred to is that only which is produced by what the law recognizes as a just or lawful cause of provocation."

18. SAME—COMMISSION OF OFFENSE.

On a trial of one of joint defendants charged with murder, an instruction permitting the jury to find defendant guilty if he and his codefendant willfully, deliberately, and premeditatedly did each with a gun, that is to say, one of them with a shotgun and the other of them with a rifle, or one with a shotgun and the other with a pistol, shot and killed deceased, was not objectionable as authorizing the jury to convict defendant on evidence that was given against his codefendant.

19. CRIMINAL LAW — APPEAL — FINDING OF TRIAL COURT—DENIAL OF NEW TRIAL.

Where a motion for a new trial was based on the ground that a juror had previously formed and expressed opinion as to the guilt of defendant, and the trial court, after hearing conflicting evidence as to whether the juror had expressed an opinion, overruled the motion, its finding based on substantial evidence will not be interfered with on appeal.

20. SAME—TRIAL—MISCONDUCT OF JURY.

On the trial of a criminal cause before the jury had retired to consider their verdict, one of the jurors went with the deputy sheriff from the jury room to attend a call of nature, the remaining eleven jurors remaining in the jury room, locked up. During his absence the juror did not see any person except the deputy sheriff, and did not talk with him in regard to the case. Held, that there was no misconduct warranting a reversal of the judgment.

21. SAME.

That a jury in a criminal trial occupied the circuit court room at night, and on one occasion one of them examined a copy of the general statutes to see how much fees they were allowed for jury services, and on another evening another read a portion of an opinion from one of the Missouri Reports in a criminal case, shows no such misconduct on the part of the jury as would justify setting aside their verdict.

22. HOMICIDE — APPEAL—HARMLESS ERROR — CONDUCT OF TRIAL.

At the beginning of the trial for murder, the prosecuting attorney brought into the court-room a shotgun, a Winchester rifle, a pistol, and a knife, which he placed under the desk of the clerk, and these weapons remained there during the trial. The shotgun and pistol were identified and introduced in evidence. The rifle and knife were not introduced, but during his argument one of defendant's counsel said: "Where is the Winchester rifle? The echo comes to me that it is right where that clerk's desk is there." This was the only reference made to the rifle, except that the testimony showed that when defendant left his home on the day of the homicide he was armed with a Winchester rifle. None of the jurors examined the rifle or saw it until this allusion to it by defendant's counsel. The jury held their deliberations in the courtroom, and the rifle was...