State v. Speyer

• Decision Date: 06 March 1906
• Citation: 194 Mo. 459,91 S.W. 1075
• Parties: STATE v. SPEYER.
• Court: Missouri Supreme Court

91 S.W. 1075

194 Mo. 459

STATE v. SPEYER.

Supreme Court of Missouri, Division No. 2.

March 6, 1906.

1. INFORMATION — VERIFICATION — AMENDMENT.

Under Rev. St. 1899, § 2481, permitting the amendment of an information at any time before trial as to matters of form or substance, it was proper to permit an information to be amended before trial by adding the necessary verification.

2. CRIMINAL LAW — ARRAIGNMENT — AMENDMENT OF INFORMATION—REARRAIGNMENT.

Where a defendant entered a plea of not guilty to an information, which was not verified, and the information was amended before trial by the addition of the verification, it was not necessary to rearraign the defendant.

3. SAME—INSTRUCTIONS — INSTRUCTIONS COVERED BY THOSE GIVEN.

Where the court gave an instruction upon the defense of insanity, which embraced insanity caused by fear, pain, sorrow, etc., it was not error to refuse requested instructions which dealt minutely with the innocence of accused in case fear, etc., acted suddenly upon his mind.

4. SAME—EVIDENCE — LETTERS WRITTEN BY DEFENDANT.

On a prosecution for the murder of accused's infant son, letters written by him before the crime, showing his fondness and affection for the child, were not admissible to establish his devotion.

5. SAME — MENTAL CONDITION — DECLARATIONS.

On an issue as to defendant's sanity, letters written by him, evidencing mental weakness, are competent.

6. SAME—OPINIONS—FACTS FORMING BASIS.

On an issue as to the sanity of accused, a witness testified that she knew he had been positively insane on two occasions, that her knowledge was based upon the change which suddenly took place, that she saw the awful change which took place in his every expression, that there was a change in the personality, and that he had delusions, because there were no Indians in that part of the state, though he thought they were after him. Held, that it was prejudicial error to exclude the statements of the witness as to the facts on which her opinion was based.

7. SAME—INSANITY—EVIDENCE.

Where, on an issue as to the sanity of accused, a witness testified that accused seized his child on one occasion and tried to jump out of a window with him, her statement in that connection, that she became frightened, and for the safety of the child took him to reside in her family, was competent.

8. SAME—APPEAL—PREJUDICIAL ERROR.

The admission of testimony not relevant to the issues, and which contains insinuations from which the jury might infer that accused had committed some unlawful act with respect to the witness, is prejudicial error.

9. SAME—EXPERTS—PRELIMINARY QUESTIONS.

On an issue as to the sanity of an accused, it was proper to ask the medical experts, when they were placed on the stand, as to whether excessive fright or other enumerated emotions would entirely prevent thought from taking place.

Appeal from Circuit Court, Jackson County; John W. Wofford, Judge.

John M. Speyer was convicted of murder in the first degree, and he appeals. Reversed.

This cause is here by appeal from a judgment in the criminal court of Jackson county, Mo., convicting the defendant of murder of the first degree. The indictment upon which this judgment of conviction rests charges the defendant with feloniously, willfully, premeditatedly, deliberately, and with malice aforethought killing one Freddie Speyer, a son of the defendant, aged about five or six years, on the 16th of July, 1902, at Kansas City, Mo. This is the second appeal of this case, and it is conceded by both appellant and respondent that the facts as developed at the trial of this cause are practically and substantially the same as were shown by the record upon the former appeal. The result of the first appeal in this cause will be found reported in 182 Mo. 77, 81 S. W. 430. In that volume the facts as to the tragical killing by the defendant of his son, Freddie Speyer, are carefully and fully set forth, hence we deem it unnecessary to burden this opinion with a reproduction of the facts as stated upon the former appeal. Upon this trial, at the close of the evidence, the court instructed the jury upon murder in the first degree, on appellant's defense of insanity, together with instructions on the credibility of witnesses, reasonable doubt, and other general instructions applicable to the issues presented. The cause being submitted to the jury upon the evidence and instructions of the court, a verdict finding the defendant guilty of murder of the first degree was returned. Motions for new trial and in arrest of judgment were timely filed, and, after being taken up by the court, were overruled. Sentence and judgment followed in accordance with the verdict returned, and from this judgment defendant in proper form prosecuted his appeal to this court, and the record is now before us for consideration.

W. F. Riggs, for appellant. The Attorney General and John Kennish, for the State.

FOX, J. (after stating the facts).

The record before us discloses the assignment of numerous errors as a basis for the reversal of this judgment. We will give those which we deem of sufficient importance such consideration as their importance merit and demand.

1. It is insisted by counsel for appellant that the court committed error in overruling the defendant's motion to quash the information. Upon the former appeal the information in this cause was not verified, as required by the provisions of the statute; however, it was held upon that appeal that the appellant having failed to take advantage of the failure to verify by an appropriate motion to quash, that the question of want of verification was not open to review in this court. Upon the cause being remanded for a new trial the prosecuting attorney, in open court, in the presence of the defendant and his counsel, was permitted to amend the information by adding the necessary verification, and it is to this action of the court and its failure to rearraign the defendant upon the information as amended, to which appellant's complaint is directed. There was no error in the action of the court in its overruling of the motion to quash. The information was in proper form, and charged the offense in such terms as have repeatedly met the approval of this court. It was ruled by this court in State v. Brown, 181 Mo., loc. cit. 232, 79 S. W. 1111, that the verification provided by the statute is not a part of the information, and its purpose is to afford the defendant a guaranty of the good faith of the prosecution and to prevent a careless and reckless prosecution of a citizen, and there was no error in permitting this information to be amended by adding the proper verification. It was not an amendment that in any way affected the substance of the information, but was simply sought for the purpose of having it comply with the formal requirements of the statute. By express provisions of the statute, informations may be amended at any time before the trial, as to matters of form or substance. Section 2481, Rev. St. 1899. The defendant had previously entered his plea of not guilty to the information which charged the commission of the offense, and there was no necessity for his rearraignment to it after an amendment as to a mere matter of form.

2. Appellant complains of error at the action of the court in refusing instructions requested by the defendant Nos. 1, 2, and 3, which were as follows: "(1) The court instructs the jury that if you shall find and believe from the evidence that the defendant cut the throat of Freddie Speyer with a pocket knife, and from such wound the said Freddie Speyer died, and shall further find and believe from the evidence that immediately before such act the defendant had been accused of crime and placed under arrest, and that threats and demonstrations were made in his presence which led him to believe that he was in imminent peril of being immediately hanged, or suffering great bodily injury, and such belief, coupled with the fear of leaving his son alone in the world, suddenly caused and produced a condition of fright in the mind of defendant, which fright suddenly arrested his powers of reflection to such an extent that at the time and immediately before he struck the homicidal blow he was incapable of deliberation and in fact did not deliberate, as that term is defined in the other instructions, and was incapable of distinguishing right from wrong in reference to such act, then you will find the defendant not guilty of murder in either degree. (2) The court instructs the jury that fright, or excessive pain or sorrow, pleasure or joy, can prevent thought from taking place, and that such conditions exist in the insane; the self-consciousness being so changed or affected that the usual response to impressions no longer takes place, leading thus in an abnormal way to abnormal feeling, thought, and volition. If, therefore, the jury shall believe and find from the evidence that immediately before, and at the time the defendant cut the throat of Freddie Speyer with a pocket knife, if he did so, that the mind of defendant was in an insane condition caused and produced by fright or excessive mental pain or sorrow, to such an extent that the self-consciousness of defendant was so changed or affected by such mental shock that the usual response to impressions received into consciousness no longer took place, leading thus in an abnormal way to abnormal feeling, thought, and volition, and that the homicide was committed while defendant was in such abnormal condition, if the jury find he was in such abnormal condition, then you will find the defendant not guilty of murder in either degree. (3) If the jury believe and find from the evidence that the homicide was the result of fright or mental shock, and not the result of malice, then you are instructed that what caused this fright or mental shock is immaterial, and, although you may believe that others would not have been so shocked or frightened...