State v. Underwood

• Decision Date: 31 March 1874
• Parties: STATE OF MISSOURI, Respondent, v. WESLEY UNDERWOOD, Appellant.
• Court: Missouri Supreme Court

57 Mo. 40

STATE OF MISSOURI, Respondent,

v.WESLEY UNDERWOOD, Appellant.

Supreme Court of Missouri.

March Term, 1874.

Appeal from Marion Circuit Court.

W. M. Boulware & Jno. F. Williams, for Appellant, cited: Hane vs. State, 4 Howard, (Miss.) 187; Com. vs. Roly, 12 Pick., 496; Com. vs. McCall, 1 Va. Cases, 271; McLain vs. State, 10 Yerg., 241; 13 Mass., 218; 2 N. H., 474; Boles vs. State, 13 Sm. & M., 398; Jones vs. State, 2 Blackf., 479; McCann vs. State, 9 Sm. & M., 495; Lord Deleware's case, (4 Harg. St. trials, 232;) 3 Whart., 3089.

Jno. H. Overall, for Respondent.

I. The court properly gave the 8th instruction for the State.

II. The rule is now perfectly well settled both in England and in this country that the testimony of jurors is inadmissible to show their own misbehavior, but may be received to explain or contradict other evidence tending to impeach their verdict. (33 Mo., 71; 4 Johns., 487; 12 Pick, 520, 524, 525; 1 Greenlf. Ev., § 252; 107 Mass., 453--reviewing the whole question; 2 Grant, 41.)

WAGNER, Judge, delivered the opinion of the court.

This was an indictment for murder in the first degree found in the Ralls County Circuit Court against the defendant and six others for the killing of one Richard Menifee. The defendant was charged as principal in the first degree, and the others were charged as being present, aiding, abetting and assisting in the murder.

Upon the application of the defendants, a change of venue was granted to the Circuit Court of Macon County and when the case was called for trial, a new judge having in the meantime been elected, who had previously been of counsel for defendants, a suggestion of that fact being made, the case was sent to Marion County, in another judicial Circuit, for trial.

When the case was called, the attorneys prosecuting for the State announced themselves ready for trial, and the defendant and Samuel Scobee, who was included in the indictment as a co-defendant, moved for a separate trial. Scobee asked that he might be first tried, and defendant demanded that Scobee should be first tried, alleging that he wanted the testimony of Scobee to be used on his trial. The Circuit attorney then moved that the defendant be first tried as he stood charged as principal in the first degree, and Scobee was only charged with aiding and abetting. The court sustained this motion and ordered the prosecution to proceed against the defendant, and to this ruling exceptions were duly saved.

It seems that the difficulty between Menifee, the deceased, and the defendants in the indictment, had its origin in the removal of a fence which separated the farms of the respective parties. The true line was not accurately fixed, but enough was known to render it certain that the fence was placed upon the land of the Underwoods, the defendants. Menifee had built the fence and it belonged to him, and at the time the homicide was committed, he, with his brother, was in the act of removing it and putting it upon his own land. To this, defendants objected, as it would expose their crops. Defendant and Menifee had had some difficulty the evening before, and on the morning of the murder, Menifee brought a shot-gun with him when he went to his work in tearing down and re-building the fence.

The main witness for the prosecution was the brother of the deceased, who was assisting him at the time. He says that while they were staking off the line, he looked out and saw two men, defendant and Scobee, and when they saw witness and the deceased, defendant started to wards them and then stopped and made a motion to Scobee to go west. Scobee got on his horse and went in that direction, and defendant went south towards Stephen Underwood's (his father's) house. The work continued, and in a short time Stephen Underwood came and he said to the deceased, that the boys were not going to let him move that fence. Deceased then said there was a legal way to stop them from moving the fence, and the old man said he would see as soon as he could get the boys and their arms. Stephen Underwood then went towards his house. Witness and deceased then went to another portion of the fence and commenced tearing it down, when, in about half an hour after Stephen Undewood left, he returned, and upon looking up, witness told his brother that he saw Stephen Underwood, William Underwood, Strother Underwood, Wesley Underwood, (defendant,) Frank Underwood, Asa Underwood, and Samuel Scobee. They were about a quarter of a mile off when he first saw them. Scobee and Strother Underwood were coming from the west until they got to his brother's fence and then they came up the fence. Stephen and Frank Underwood were coming up the fence from the south. The other three were coming up about twenty steps from the fence. The old man ordered witness to stop tearing down the fence, but he kept on. They then had an altercation between themselves. Defendant, Wesley Underwood, started from the edge of some plowed ground opposite Richard Menifee, the deceased, with his gun presented towards him in a position to shoot. Richard then picked up his gun, both fired, the shots were so near together that witness could not tell which fired first. Richard was shot and fell. He then raised himself up on his knees and shot again. The Underwoods then ran towards him and were shooting and beating him. Witness heard some three or four shots. Some had sticks, some guns, and some pistols; saw some three or four blows, could not tell how many. The deceased, after he was shot down was repeatedly struck with a gun on his breast, neck, and head, and died in a short time thereafter. The shots were mortal. There was no other eye witness on the part of the State, but there was corroborative evidence as to the number of shots, etc., by those who were working in the immediate neighborhood.

William Colliver was a witness for the State, and he testified that he lived within less than a quarter of a mile of Stephen Underwood, and he explained the situation of his farm and the Underwood and Menifee farms and stated in his testimony, that the Underwoods had joined on his fence without his permission. To this testimony, as to Underwoods joining witness' fence without permission, defendant's counsel objected and the court sustained the objection, but the evidence was given in a narrative from and the remark was made before the witness could be stopped.

For the defense, Mrs. Amanda Scobee, the wife of Samuel Scobee and sister of defendant, stated that on the morning of the murder she started out to the field, and saw her husband and Strother Underwood riding in the direction of where Menifee was tearing down the fence, and that she went on up to the fence and was within thirty or forty yards of where Menifee and defendant fought; that when she got there all the defendants and Richard and John Menifee were there. Richard and John were tearing down the fence. She then speaks about the difficulty that took place between John Menifee and her father, and after that Richard Menifee then said, “there is Wesley, (defendant) and by God I will kill him anyhow” and picked up his double-barreled shot-gun and fired at Wesley as he picked up his gun. Strother said “for God's sake Dick don't shoot.” Dick shot Wesley, and Wesley shot Dick. They fired two shots each, Dick was killed, and Wesley was badly wounded and pulled open his shirt and said he was killed. The witness then testifies that she and her husband did what they could to administer to the comfort of the deceased while he lived, and in the continuation of her testimony she says, that Dick and Wesley each had a double-barreled shot-gun; that there were four shots fired in all, and that after the firing, Wesley and Dick came together and clenched and fell. John Menifee then ran up and pulled Wesley off from Dick. Wesley picked up a gun and turned on John and struck him, and then turned on Dick and struck him several times with the gun. Franklin Underwood, another brother of the defendant, testified, that he had been at home sick, and was in the house, when Wesley, the defendant, came and got his gun, and said the Menifees were pulling down the fence, and started off in that direction. Witness then put on his coat and followed after him, he saw the whole encounter, and gives essentially the same version of it that Mrs. Scobee does in her testimony. Some other evidence was introduced which was unimportant. The defense then offered to prove that Underwoods had joined their fence to Menifee's with the latter's permission. This evidence was objected to by the State and the objection sustained.

For the State the court gave twelve instructions, the sixth, seventh and eighth are the ones objected to in this court. The sixth instruction told the jury that if the defendant killed Menifee with a gun, loaded with powder and bullets, the law presumed the killing to have been intentional, and it was murder in the second degree in the absence of proof to the contrary, and that it devolved upon the defendant to show, from the evidence in the cause, to the reasonable satisfaction of the jury, that he was guilty of a less crime or acted in self defense.

By the seventh declaration the jury are instructed that if they believe, from the evidence, that Richard Menifee was engaged in pulling down his fence, and that the defendant came to where said Menifee was at work, armed with a loaded gun for the purpose of compelling said Menifee to desist from pulling down the fence by force, and approached said Menifee in such a manner as to give Menifee reasonable cause to apprehend a design on the part of defendant to kill him, or to do him some great bodily harm, unless he desisted from pulling down the fence, and there was reasonable cause to apprehend immediate danger of such design being accomplished, then the killing of said Menifee by defendant was not justifiable homicide.

The eighth instruction tells the jury that if they find from the evidence, that defen...