State v. Tucker

• Decision Date: 13 December 1910
• Citation: 232 Mo. 1,133 S.W. 27
• Parties: STATE v. TUCKER.
• Court: Missouri Supreme Court

133 S.W. 27

232 Mo. 1

STATE v. TUCKER.

Supreme Court of Missouri, Division No. 2.

December 13, 1910.

Rehearing Denied December 27, 1910.

1. CRIMINAL LAW (§ 1038)—APPEAL—INSTRUCTIONS —REVIEW.

Where accused did not at any time request any instructions, and did not save any exceptions to the failure to instruct on all the law applicable to the evidence, he cannot on appeal complain of the failure to charge on the whole law applicable to the facts.

2. HOMICIDE (§ 308)—EVIDENCE—INSTRUCTIONS.

Where, on a trial for murder, the evidence showed that decedent's husband had impounded the cattle of accused, who came for them, and that decedent and her husband accompanied him to the barnyard, where he first killed the husband, and then decedent, who had not said or done anything to arouse the passion of accused, so that the provocation, if any, must have come from the husband, a charge that to reduce the killing to murder in the second degree, it must have been done in the heat of passion caused by some conduct of the husband, such as would reasonably arouse passion, and the mere fact that the husband impounded the cattle of accused, and refused to deliver them on demand, was not sufficient provocation, properly submitted the issue of provocation sufficient to reduce the killing to murder in the second degree.

3. HOMICIDE (§ 307)—EVIDENCE—INSTRUCTIONS.

Where the evidence showed that decedent's husband had impounded the cattle of accused, who came for them, and that decedent and her husband accompanied accused to the barnyard, where accused first killed the husband and then decedent, that a moment before the shooting accused faced to the north, the husband to the south, and decedent stood west of them, and that the husband received two bullet wounds, either of which would have proved fatal, and that he sank to the ground where he stood, the testimony of accused that he did not see decedent, and did not know that she was on the ground, and that the killing of her was accidental, was contrary to the physical facts, and the court was not required to charge on his testimony to reduce the grade of the offense.

4. HOMICIDE (§ 295)—EVIDENCE—INSTRUCTIONS.

Where, on a trial for murder, there is no evidence of either lawful or just provocation, the court must, in its instructions, so inform the jury.

5. HOMICIDE (§ 340)—APPEAL—HARMLESS ERROR—ERRONEOUS INSTRUCTIONS.

Where, on a trial for murder, there was no evidence of provocation, an error in the instructions defining provocation is not ground for reversal, especially where the court correctly charged that a certain act was not a sufficient provocation to reduce the killing to murder in the second degree.

6. HOMICIDE (§ 308)—EVIDENCE—INSTRUCTIONS.

Where, on a trial for murder, the evidence showed that decedent's husband had impounded the cattle of accused, who came for them, and that decedent and her husband accompanied him to the barnyard, where accused first killed the husband and then the wife, who had not said or done anything to arouse the passions of accused, that a moment before the shooting accused faced the north, the husband the south, and decedent stood west of them, and that shortly after the killing accused applied vile epithets to decedent and her husband, stating that he had killed them, and he testified that the killing of decedent was accidental, that he did not see her, though the killing was done in the daytime in an open barnyard with nothing to prevent accused from seeing decedent, instructions correctly submitting the issue of murder in the first degree, and the provocation necessary to reduce the killing to murder in the second degree, and stating that if accused premeditatedly, but without deliberation, shot at the husband with intent to kill him, but missed him and accidentally killed decedent, he was guilty of murder in the second degree, though he did not intend to kill decedent, were sufficiently favorable to accused.

7. HOMICIDE (§ 308)—EVIDENCE— INSTRUCTIONS.

Where, on a trial for murder, accused sought to show that the killing of decedent was accidental, and the court properly charged on murder in the first and second degrees and on the theory of the accidental killing of decedent in an attempt to kill a third person with deliberation, a charge that if accused intentionally shot decedent there was no evidence of provocation reducing the killing to murder in the second degree, was not erroneous as eliminating

the elements of murder except intentional killing.

8. CRIMINAL LAW (§ 1063)—SEPARATION OF JURY—GROUND FOR REVERSAL.

One convicted of murder in the first degree may not complain of the separation of the jury during the trial on the occasion of the sheriff or deputy taking some of the jurors through the corridors in the jail, without any communication with the prisoners or others, where the separation is not made a ground for a new trial, and where it does not appear at what time he or his counsel had knowledge of the separation.

9. CRIMINAL LAW (§ 865)—TRIAL—REMARKS OF PRESIDING JUDGE—COERCING AGREEMENT BY JURY.

The remarks of the court to the jury in a murder case, made to them the morning following their retirement on the previous afternoon to deliberate on the case, that if they could not agree, where could a jury be found who could agree, and that while the court could not force the jury to an agreement, it would not discharge them until further deliberation and a further endeavor to reach an agreement, did not unduly invade the province of the jury by attempting to coerce them to agree.

10. CRIMINAL LAW (§ 1155)—APPEAL—REVIEW —DISCRETION—CONTROL OF JURY— COERCING AGREEMENT.

The trial court has discretion as to how long it will keep a jury together in the consideration of a case, but where it can be seen that it threatened, though indirectly, to punish the jury by keeping them together, thereby coercing a verdict, the court on appeal will set the verdict aside.

11. JURY (§ 129)—CHALLENGES—GROUNDS.

A challenge of a juror which states no ground therefor is insufficient.

12. HOMICIDE (§ 253) — MURDER IN THE FIRST DEGREE—EVIDENCE.

Evidence held to justify a conviction of murder in the first degree.

Appeal from Criminal Court, Greene County; Alfred Page, Judge.

Eugene Tucker was convicted of murder in the first degree, and he appeals. Affirmed.

Perry T. Allen and Patterson & Patterson, for appellant. E. W. Major, Atty. Gen., and Jno. M. Atkinson, Asst. Atty. Gen., for the State.

GANTT, P. J.

From a judgment and sentence for murder in the first degree by the Greene county circuit court on the 5th day of May, 1909, the defendant, Eugene Tucker, prosecutes this appeal.

The prosecution was commenced by an information filed by the prosecuting attorney of said county charging the defendant with having on the 22d day of February, 1909, at the county of Greene and state of Missouri, feloniously, willfully, deliberately, premeditatedly, on purpose, and of his malice aforethought made an assault in and upon Elizabeth Ellis with a certain deadly weapon, a revolving pistol, then and there loaded with gunpowder and leaden bullets, and the said revolving pistol did shoot off, at, and against her, the said Elizabeth Ellis, and, with the said revolving pistol and gunpowder and leaden bullets aforesaid, then and there feloniously, on purpose, and with malice aforethought did willfully, deliberately, and premeditatedly shoot and strike her, the said Elizabeth Ellis, in and upon the breast of her, the said Elizabeth Ellis, giving to her then and there with the said gunpowder and leaden bullets aforesaid one mortal wound, of which said mortal wound she did at the county of Greene on the said 22d day of February, 1909, then and there instantly die. The defendant was duly arraigned and the cause was submitted to a jury on Monday, May 3, 1909, and on the 5th of May, 1909, the jury returned a verdict of guilty of murder in the first degree as charged in the information, and assessed his punishment at death. Motions for a new trial and in arrest of judgment were filed in due time, heard and overruled.

The evidence on the part of the state tended to show the following facts:

Joshua T. Ellis 63 years of age, and Elizabeth, his wife, 58 years of age, on the 22d day of February, 1909, lived about 3½ miles north of the courthouse in Springfield in a house owned by one Scott; that they lived with their son George Ellis, his wife, and their two daughters, Mary and Edith. A 10-acre cornfield, located north of the Ellis house, owned by a creosoting company, had been leased to Joshua Ellis for a year prior, and, at the date of the killing, this tract was still in his possession. The defendant, Eugene Tucker, lived about one half mile to the north and east of the Ellis home. A boy by the name of Charles Dubel, about 17 years old, and Arthur Kittrell, a brother-in-law of the defendant, lived with the defendant. A public road leading north and south lay to the east of the Ellis house, and one running east and west to the north of the place. A lane led from the public road on the north down to the Ellis home on the south. On the morning of February 22, 1909, the defendant left his home about 10 o'clock with a wagon and team, and went to Springfield, and returned about 4 o'clock that afternoon. While the Ellis and Tucker families had lived in the same vicinity for a year or more, they had scarcely a passing acquaintance with each other. Prior to February 22, 1909, the stock law had been adopted, and was in full force and effect in Greene county. About six weeks prior to February 22, George Ellis had found a horse and a cow, which belonged to defendant, Tucker, in a small cornfield of Joshua Ellis, and they were impounded by George Ellis and his father, and a charge of $3.25 was made and collected from the defendant in order to regain the possession of his horse and cow. On the afternoon of February 22, 1909, Joshua and George Ellis went to this field...