State v. Stewart

• Decision Date: 16 May 1919
• Citation: 212 S.W. 853,278 Mo. 177
• Parties: THE STATE v. ROBERT STEWART, Appellant
• Court: Missouri Supreme Court

212 S.W. 853

278 Mo. 177

THE STATE v. ROBERT STEWART, Appellant

Supreme Court of Missouri, Second Division

May 16, 1919

Appeal from Pike Circuit Court. -- Hon. Edgar B. Woolfolk, Judge.

Reversed and remanded.

Pearson & Pearson for appellant.

(1) The court committed error in not giving an instruction to the jury on manslaughter in the fourth degree. The testimony of defendant himself, and that of his daughter, Ruby Stewart with reference to deceased picking up a rock, immediately upon defendant's arrival at the mail box; the evidence of witness Lohse, who saw from a distance deceased's raised arm in a position to hurl something; and the testimony of witness, Jarve Allison, that immediately upon defendant's arrival at the mail box, the deceased stooped down, as he says, to pick up his gloves, but defendant and daughter testified that it was to pick up a rock, disclose a typical case wherein an instruction on manslaughter in the fourth degree should have been given to the jury. State v Bates, 239 Mo. 513; State v. Wilson, 242 Mo 501; State v. Grugin, 147 Mo. 48, 62; State v. McKenzie, 102 Mo. 632; State v. Conley, 255 Mo. 198. It made considerable difference, at the time, whether deceased was attempting to pick up a rock or a pair of gloves. That phase of the case, and that difference should have been presented to the jury, for its consideration, under a proper instruction from the court. (2) The court erred in giving Instruction No. Ten. In so doing, it singled out the lack of evidence of undue intimacy between deceased and the defendant's wife, and, unduly and improperly, made the impression on the jury that there was evidence from which they might find this to be a fact. This instruction was not only prejudicial, but it was vicious. By this instruction the court accentuated, in the minds of the jury, the facts stated by the prosecuting attorney, in his reply statement. From this instruction, in connection with the prosecuting attorney's reply statement, the jury could readily infer, that the defendant had no right to go to the mail box with the view of protecting his home, and the honor of his family; and that by so doing, he voluntarily entered into the difficulty; and therefore his plea of self-defense was of no avail to him. State v. Grugin, 147 Mo. 48, 62. (3) The court committed error in allowing the prosecuting attorney to make a reply statement. The law does not recognize, or countenance, a reply statement on the part of the State's attorney; and the subject matter of the reply statement in the instant case was vicious in the extreme. Sec. 5231, R. S. 1909; State v. Kennedy, 177 Mo. 116. (4) The court committed error in excluding evidence offered by the defendant of deceased's visit, and attempts to visit his home and his wife in his absence. This evidence was competent, for the purpose of showing the motive, reason and animus for defendant's going to the mail box, when he saw deceased going there to talk to his wife. The jury had a right to know why defendant went to the mail box; it also had a right to know the relations existing between the deceased and plaintiff's wife, or of such attentions as were shown and sought to be shown her on the part of the deceased. State v. Grugin, 147 Mo. 48, 62. (5) The dying declaration was a self-serving statement, made on the part of the deceased, at the suggestion of a third party, one of the deceased's kinsmen. It was made at a time when all hope of life had not ceased on the part of the doctors attending deceased, nor his relatives; and at that time deceased had never been advised that he was going to die. The dying statement also contained improper and illegal evidence which the court allowed to go to the jury.

Frank W. McAllister, Attorney-General, Henry B. Hunt and C. P. LeMire, Assistant Attorneys-General, for respondent.

(1) Where there is no evidence of manslaughter in the fourth degree, failure or refusal to instruct thereon is not erroneous. State v. Weinhardt, 253 Mo. 637; State v. Tucker, 232 Mo. 1; State v. Wooley, 215 Mo. 620. Mere words or actions, not accompanied by an assault or some violence against the person, are insufficient to reduce the guilt of killing from murder to manslaughter in the fourth degree. State v. Barret, 240 Mo. 169; State v. Starr, 38 Mo. 277. (2) Under the facts in this case, Instruction 10, given by the court, states the law properly, and there is no error therein. State v. Vest, 254 Mo. 466; State v. Herrell, 97 Mo. 112; State v. France, 76 Mo. 684; State v. Holme, 54 Mo. 164; Maher v. People, 10 Mich. 212; 21 Cyc. 751. (3) Although somewhat unusual to permit the prosecuting attorney to make a reply statement, yet there is nothing prejudicial to this defendant therein contained; therefore, said irregularity furnishes no basis for reversal. State v. Kennedy, 177 Mo. 116; State v. Brown, 247 Mo. 730; State v. Hess, 240 Mo. 160. (4) The trial court did not err in refusing to permit defendant to introduce evidence showing that deceased had visited the wife of defendant in her home on occasions when defendant was absent. State v. Vest, 254 Mo. 466; State v. Grugin, 147 Mo. 48, 62; State v. France, 76 Mo. 684; Maher v. People, 10 Mich. 212. (5) Under the facts in this case, the written statement of Walter Allison was admissible as a dying declaration. State v. Kilgore, 70 Mo. 546; State v. Chambers, 87 Mo. 406; State v. Nelson, 101 Mo. 464; State v. Gibbs, 186 S.W. 986.

WILLIAMS, P. J. Faris, J., concurs; Blair and Graves, JJ., concur in Paragraphs I, III, IV and VI, and the result; Walker, J., dissents in a separate opinion; Bond, C. J., not sitting; Woodson, J., absent.

OPINION

WILLIAMS, P. J.

An opinion was originally prepared in this case by Walker, J. All of that opinion was concurred in by the court with the exception of one paragraph thereof dealing with the question of the right of the prosecuting attorney to make a reply statement of facts to the jury at the beginning of the trial. It being therefore entirely unnecessary to redraft that portion of the opinion and the statement upon which all are agreed we will adopt that portion of the original opinion in this opinion. The portion thus adopted is as follows:

"Appellant was charged by information in the circuit court of Pike County with murder in the first degree. Upon a trial, he was convicted of murder in the second degree, and his punishment assessed at ten years in the Penitentiary. From this judgment he appeals.

"Walter Allison, the deceased, and the appellant were farmers living in the same neighborhood in Pike County. Allison was a single man, and the appellant was married, having a wife and children. For several months prior to the killing, deceased had been clandestinely meeting appellant's wife. Appellant, upon being informed of this fact, on the day preceding the killing, requested the deceased to desist in his attention to his wife. This the deceased promised to do. On December 23, 1916, deceased, in company with Arvie Allison, his nephew, went to some mail boxes on a highway in the neighborhood, one of which belonged to the deceased and another to the appellant. They found the wife and daughter of the appellant at the mail boxes waiting for the arrival of the carrier. The testimony of the State is that upon their arrival, they were greeted by the two women, the wife saying that she was not supposed to speak to them. Looking across an adjoining field, she saw her husband coming rapidly towards them, and said: 'Here comes Bob. There is going to be some trouble.' Reaching the scene of the killing, he spoke roughly to the deceased. Just at this juncture, the deceased reached down to pick up his gloves when the appellant, with an oath, began shooting at him. At the first shot, which took effect, the deceased attempted to straighten up, but at the second, he fell, saying, "Bob, you have killed me.' Appellant, at this juncture, turned and walked away, accompanied by his wife and daughter. The nephew of the deceased, assisted by others, conveyed the latter, who was not then dead, to his home, where he died.

"For the defendant, a witness named Lohse testified that from his home, one hundred feet or more from the mail boxes, he saw the killing; that the deceased, when the appellant approached, had his left hand turned back, as though about to throw something. At this juncture, appellant fired the first shot; that the attitude of the appellant had not changed when the second shot was fired; that the pistol with which the shooting was done belonged to this witness, and immediately after the killing he went down and got it from the appellant, went to his house, and telephoned for help, and returned a few minutes later to where the deceased was lying in the road and assisted in conveying him to his home; that on one occasion prior to the shooting, he had discussed with the appellant the intimacy of the latter's wife and the deceased.

"The fifteen-year-old daughter of the appellant stated that when her father came up and asked the deceased why he had not complied with his promise, the latter picked up a stone to throw it, saying, with an oath, 'I will smash your brains out.'

"The appellant's testimony, material to the matters at issue, is substantially as follows: Upon seeing the deceased and his nephew leave the former's home and go down to the mail boxes, he went to his house, put a pistol in his pocket, and went across the field to the mail boxes. Approaching them, he said to the deceased: 'What did you promise me about my family yesterday?' That the deceased replied with an oath: 'I will smash your brains out,' and picked up a stone lying in the road. In the meantime, the appellant drew his pistol, and before deceased could throw the stone, he shot him. At the first...