State v. Taylor

• Decision Date: 10 November 1947
• Docket Number: 40491
• Parties: State v. Dill Taylor, Appellant
• Court: Missouri Supreme Court

205 S.W.2d 734

356 Mo. 1216

State v. Dill Taylor, Appellant

No. 40491

Supreme Court of Missouri

November 10, 1947

Appeal from Cedar Circuit Court; Hon. O. O. Brown, Judge.

Affirmed.

S E. Osborn, Lee Crook and Lewis B. Hoff for appellant.

(1) The verdict of the jury is against the evidence and the weight thereof. The facts do not show any evidence of premeditation or malice on the part of the appellant. State v Foster, 197 S.W.2d 313. (2) The court erred in not sustaining appellant's motion, in the nature of a demurrer, at the close of the State's case and again at the close of all the evidence. State v. Duncan, 50 S.W. 2d 1021; State v. Murphy, 201 S.W. 2d 280; State v. Simon, 57 S.W. 2d 1062; State v Knight, 296 S.W. 367. (3) The court committed error in not administering to the sheriff the oath prescribed in Section 701, R.S. 1939, before summoning additional persons to complete the jury. (4) The court erred in refusing to give Instructions A and B offered by the appellant on the question of motive. State v. Wheaton, 221 S.W. 26. (5) The court erred in refusing to give Instruction C offered by appellant. This instruction is a correct statement of the law and is a converse of the state's main instruction. State v. Quinn, 130 S.W.2d 511; State v. Fraley, 116 S.W.2d 17. (6) The court erred in giving Instruction 2 on manslaughter because the instruction is too narrow and does not define excusable or justifiable manslaughter. State v. Foster, 197 S.W.2d 319; State v. Aitkins, 179 S.W.2d 84; State v. Unfried, 76 Mo. l.c. 408. (7) The court erred in giving instructions 4 and 7 because they both deal with the same phase of the offense and tend to emphasize the question of the use of the rock which the evidence does not show. The jury was thus allowed to presume that the appellant had the rock in his possession, that he struck and killed Mattie Keith with said rock, thus basing a presumption upon a presumption, which the law does not permit. State v. Simon, 57 S.W.2d 1062; State v. Knight, 296 S.W. 367. (8) The court erred in not instructing the sheriff to summon some women as prospective jurors. Sec. 22, Art. 1, Mo. Constitution. (9) The court erred in not setting aside the verdict of the jury and granting a new trial on account of the newly discovered evidence as shown by the affidavit of Dr. J. H. LePere summoned by the State as a witness but not called to testify. The withholding of the testimony of Dr. LePere by the State prevented the jury from having all the facts. (10) The court erred in giving Instruction 1 to the consideration of the jury. This instruction was on murder in the second degree and there was no evidence in the case of any malice or premeditation on the part of the appellant. State v. Foster, 197 S.W.2d 313.

J. E. Taylor, Attorney General, and W. Brady Duncan, Assistant Attorney General, for respondent.

(1) The court did not err in overruling demurrer filed at close of State's case or at close of all the evidence. State v. Lebo, 98 S.W.2d 695, 339 Mo. 960; State v. Carter, 131 S.W.2d 546, 345 Mo. 74; State v. Bowles, 47 S.W. 802, 146 Mo. 6. (2) The court did not err in overruling appellant's assignments III and VIII because they are too general and do not point out wherein the court committed any error. Sec. 4125, R.S. 1939; State v. Jackson, 102 S.W.2d 612; State v. Zoller, 1 S.W.2d 139. (3) The court did not err in overruling assignments numbered IV and X of appellant's brief because the record does not support same. State v. Pinkard, 300 S.W. 748, 318 Mo. 751. (4) The court did not err in refusing defendant's instructions designated A and B on the question of motive. State v. Logan, 126 S.W.2d 256, 344 Mo. 351, 122 A.L.R. 417; State v. Koch, 16 S.W.2d 205, 322 Mo. 106. (5) The court did not err in refusing defendant's Instruction C. State v. Murrell, 169 S.W.2d 409; State v. Talbert, 174 S.W.2d 144, 351 Mo. 791. (6) The court did not err in giving Instruction 2. Secs. 4379, 4380, R.S. 1939; State v. Pillow, 169 S.W.2d 414; State v. Westmoreland, 126 S.W.2d 202; State v. Lewis, 37 S.W. 806, 136 Mo. 84. (7) The court did not err in giving Instructions IV and VII. Section 4125, R.S. 1939; State v. Kaner, 93 S.W.2d 671, 338 Mo. 972; State v. Talley, 12 S.W.2d 28; Raymond's Work on Instructions, Secs. 5986, 5990; State v. Wilson, 103 S.W. 110, 126 Mo.App. 302; State v. Grant, 45 S.W. 1102, 144 Mo. 56; State v. Dollarhide, 333 Mo. 1087, 63 S.W.2d 998. (8) The court did not err in overruling appellant's assignment asking for a new trial because of newly discovered evidence. State v. Talley, 12 S.W.2d 28; State v. Parker, 24 S.W.2d 1023, 324 Mo. 734; State v. Willis, 37 S.W.2d 407; State v. Burd, 23 S.W. 377, 115 Mo. 405; State v. Carroll, 333 Mo. 558, 62 S.W.2d 863.

OPINION

Douglas, P.J.

Dill Taylor was sentenced to ten years imprisonment for the second degree murder of his friend Mattie Keith. He appealed.

Mattie (probably short for Matthew) Keith, 62 years old, and his brother Bill Keith, 76 years old, lived together in a cabin in the country outside of Caplinger Mills in Cedar County. Mattie raised and trained hunting dogs. Dill Taylor would bring his dogs out to the Keiths about every Saturday night to get the Keiths to go hunting with him. He would usually show up drunk and if the Keiths would not go hunting he would fight them. A number of times the Keiths hid from him to avoid going hunting. On the evening of the murder Mattie had told his brother Bill he was not going hunting that night. He had also told Dill in the afternoon he did not want to hunt that night. When Dill arrived that evening in his automobile, driven by Jean Robin, with Dill's brother Johnnie and their dogs, Mattie came out of the cabin and told him he would not go hunting and tried to beg off. They were arguing back and forth when Bill Keith came out of the cabin to prevent a quarrel, telling Dill to take his dogs and go away. Thereupon, Dill jumped out of the automobile and attacked Bill. He beat him brutally, and knocked him to the ground. All the time Jean remained in the automobile sitting in the driver's seat. It was growing dark but the cabin door was open and light came from the opening. The automobile was standing about 20 feet from the cabin. When Dill had Bill Keith on the ground Mattie rushed in and pulled Dill off of him. They scuffled. Jean testified he heard a hit and saw Mattie go down. Then he heard a second hit, and heard Dill say "You lay there now." Then Dill went over to Bill, who was still on the ground, and asked him if he had enough. Next Dill went into the house and asked those inside "if they wanted any of it." He then came outside and, testified Jean, "then I heard something drop on the ground." Dill told Jean to drive him back to town. Jean turned on the car lights and commenced to back the automobile. He saw Mattie in the pathway of his lights motionless on the ground. Blood was coming from his head above his left ear. Dill remarked to Jean that "he hoped he did not kill him." Dill's clothes were bloody but he was uninjured. Jean went home with Dill and spent the night. The next morning they were told that Mattie was dead and Dill warned Jean: "Don't tell who done it."

Bill Keith came to, and crawled into the cabin. He and three others slept the night there. The next morning they found Mattie dead on the ground, apparently where he had dropped. A neighbor found a rock by the cabin near the door. The rock was stained with human blood.

The coroner testified Mattie had a small wound on his chin, another below his left ear, another on top of his head, and the fatal wound was back of his left ear where his skull was crushed and pierced. The coroner placed the rock at the depression in Mattie's skull and found it fit the depression and the hole in the skull.

The evidence shows a brutal assault with a weapon used in a manner to produce the death which resulted, without cause or provocation. It is sufficient to support the verdict of murder in the second degree.

The court instructed the jury in Instruction No. 4: ". . . that if one person intentionally uses upon another a deadly weapon (that is, a weapon which, as used, is likely to produce death) at a vital part of the body, and in such a manner that death is likely to result, he is presumed by such use to have intended to kill, and if he so uses such weapon without just cause or provocation he is presumed to have acted with malice aforethought. Whether the said rock was a deadly weapon and whether such weapon was used in such a manner and with such intent by the defendant on the occasion under consideration, are matters to be determined by you from all the facts and circumstances in the case."

The court further instructed the jury in Instruction No. 7: ". . . that the law presumed that a person intends the natural and probable consequences of his acts, and if you believe from the evidence in the case that the defendant Dill Taylor assaulted with a deadly weapon, a large rock, Mattie Keith, in a vital part of the body, the law presumes that defendant, Dill Taylor intended to kill Mattie Keith."

Such instructions are proper under the particular facts of this case and they correctly state the law. "It is universally held that everyone is presumed to intend the natural and probable consequences of his own intentional act . . . It follows that where one uses a weapon likely to produce death in making an assault upon another, and death ensues, the one who commits the act is presumed to intend death." State v. Hart, 309 Mo. 77, 274 S.W. 385. Similar instructions were approved in State v. Dollarhide, 333 Mo. 1087, 63 S.W.2d 998; State v. Grant, 144 Mo. 56, 45 S.W. 1102; State v. Silk, 145 Mo. 240, 44 S.W. 764, 46 S.W. 959; State v. Graves, 352...