State v. Taylor

• Court: Missouri Supreme Court
• Writing for the Court: Burgess
• Citation: State v. Taylor, 171 Mo. 465, 71 S.W. 1005 (Mo. 1903)
• Decision Date: 03 February 1903
• Parties: STATE v. TAYLOR.

71 S.W. 1005

171 Mo. 465

STATE v. TAYLOR.

Supreme Court of Missouri, Division No. 2.

February 3, 1903.

HOMICIDE—INFORMATION — DISMISSAL — SUBSEQUENT INDICTMENT—GRAND JURY—CHALLENGE —JURY—EXCUSING JUROR—INSTRUCTIONS.

1. The dismissal on the motion of the prosecuting attorney of an information for homicide, under which defendant had not been put in jeopardy, was no bar to a prosecution under an indictment subsequently found.

2. An indictment was not invalid on the ground that defendant, confined in jail, was not given an opportunity of challenging the grand jury, where it did not appear that any member of the jury was the prosecutor or complainant, or witness for the prosecution, which are the only grounds for the challenge of a grand juror prescribed by Rev. St. 1899, §§ 2487, 2488.

3. A record reciting that, on a designated, day, defendant, in person and by attorney, withdrew his plea of not guilty to an indictment for homicide, theretofore entered, and filed a plea in bar, which, on being overruled, the plea of not guilty was re-entered, showed a legal arraignment and plea of not guilty, and could not be contradicted by affidavits that the plea of not guilty was entered by one of defendant's counsel, and not by defendant or the court.

4. The action of the court in excusing on its own motion a venireman was not reversible error, in the absence of a showing on the part of defendant that he was prejudiced thereby.

5. An instruction on a trial for homicide that, before the jury could convict, they must be satisfied of defendant's guilt beyond a reasonable doubt, was not erroneous, for failing to state that, if they entertained a reasonable doubt, they should acquit, where the court also charged that the law presumed defendant innocent, and the burden of proving him guilty rested with the state, and that, before they should convict, the guilt must be established beyond a reasonable doubt.

6. Where the instructions given fairly present the question, it is not error to refuse other instructions covering the same question.

7. Where, on a prosecution for homicide, there was no evidence of any sudden passion on the part of the accused, an instruction defining "deliberately" as being a cool state of the blood, not in a heat of passion caused by some lawful cause, was not erroneous.

Appeal from criminal court, Jackson county; Samuel Davis, Special Judge.

John G. Taylor was convicted of murder, and appeals. Affirmed.

L. C. Boyle and W. F. Riggs, for appellant. The Attorney General and Jerry M. Jeffries, for the State.

BURGESS, J.

On the 7th day of May, 1901, defendant was indicted in the criminal court of Jackson county, and charged with murder in the first degree, for having theretofore, to wit, on the 2d day of March, 1901, at said county, feloniously, willfully, deliberately, premeditatedly, on purpose, and of his malice aforethought, shot and killed with a rifle gun one Ruth Nollard. He was afterwards put upon trial in said court under said indictment, and convicted of murder in the first degree, and his punishment fixed at death. After unavailing motions for new trial and in arrest, defendant appeals.

The killing was not denied. The defense was insanity. At the time of the homicide, defendant was about 23 or 24 years of age, and engaged as manager of a skating rink in Kansas City, Mo. The deceased was at that time about 18 years of age, and was in the service of a dry goods establishment in said city. They met for the first time in October, 1900, from which time defendant, although a married man, having a wife and a small child (with whom, however, he was not living), sought to pay attention to the deceased. She was not aware at the time that he had a wife, nor did she become aware of the fact for some time after he began waiting upon her. His wife left him because he had assaulted and choked her, and she was afraid of further violence at his hands if she continued to live with him. After deceased learned that defendant was not a single man, she advised him of it, and tried to get him to desist from his attentions to her, but he refused to do so. Something like two years previous to the homicide, Miss Nollard met a young man by the name of William H. Jones, to whom she previous to the homicide was engaged to be married. Jones was living in Chicago, and a correspondence was kept up between them. When the defendant sought to press his suit for Miss Nollard's hand, it was first met with a statement that he was a married man. This he admitted, but said that he had instituted proceedings for a divorce, and that matter would not long be in the way. He was then told that Ruth was engaged to Jones, and that she would not marry him (the defendant) under any circumstances, but he continued to pay his attentions to the girl against her will and against the will of her parents. She avoided meeting him at all times as far as possible, and when he would come to her home she insisted on some member of the family remaining with them, as she could not induce him to leave otherwise. On one occasion he hit her and beat her and choked her until she promised to marry him. On several occasions similiar occurrences took place. Twice warrants were sworn out for his arrest, but no prosecution followed. Harry Jones came from Chicago to Kansas City to visit Miss Nollard in the winter of 1900-1901. He met the defendant, who first undertook to discourage him in his suit for her hand by telling him that she was deceiving him, that she would not marry him, that she would kill herself first, and things of that character. Jones, however, was not to be deterred. Then, on about the 7th day of January, 1901, the defendant sent to Harry Jones a letter of warning. The letter was written on Tuesday night, and was as follows: "Mr. Harry Jones: If you value your life, you will leave Kansas City by Wednesday night. Ruth Nollard will never marry you or any other man. When Ruth dies, I die. Harry Jones, don't you dare write to Ruth when you leave." Afterwards Jones saw him about this letter. Defendant told him that he was excited,—did not mean anything by it,—but that Miss Nollard had told him (the defendant) that, if he (defendant) would not marry her, she would take laudanum. After completing his visit, Jones left, and returned to Chicago, and the correspondence with the girl continued; and the defendant knew of that fact, and continued to press his suit for Miss Nollard's hand. In order to avoid the continued annoyance of the defendant's presence, Miss Nollard was sent from home, where she remained a week or 10 days. The defendant continued to apply at the Nollard home and make inquiry for her, and made numerous threats against her if she would not marry him. He then rented a room in the front part of a residence on West Ninth street, in Kansas City. He secured a third-floor front room, and told the owner of the residence that he was night operator at one of the railroad offices, and would not be in his room of nights, but would be there only during the daytime. At the time of the homicide, the deceased and Louise Nollard, her sister, were passing down Ninth street; Louise going to her work, and deceased accompanying her. When opposite the room rented by the defendant, Ruth Nollard was killed. Her sister, Miss Louise, described the killing as follows: "She was going to take me back to work, and, just as we got almost to Bank street, I heard a shot, and she staggered, and I threw my arms around her, and then another shot; and I looked to see where it came from, and I could see the shot came from the third window. I tried to hold her, but I couldn't. Had to let her go. A third shot was fired, and I jumped and stooped over her, and she rolled her eyes up, just as if she wanted to say something. She just screamed. I think she said, `I am shot,' but I know she screamed, and I tried to pick her up. She couldn't speak, because we both begged her, —mamma and I." The girl was taken to a drug store near by, and from thence conveyed home, where she died almost as soon as she reached her home. An officer made an examination of the room from where the shot came, and found it filled with smoke, cartridges in the drawer of the dresser in the room, and a rifle on the floor, and one cartridge placed in the rifle. Just back of this room, in room No. 6, the defendant was found lying under the bed, on his stomach, with his hands over his face. He told the officer that he shot Ruth Nollard and said to him, "You would have done the same thing if she treated you that way." An examination of the girl disclosed that two shots struck her, either one of which would have been sufficient...