State v. Underwood

• Decision Date: 23 February 1915
• Citation: 173 S.W. 1059,263 Mo. 677
• Parties: THE STATE v. JAMES UNDERWOOD, Appellant
• Court: Missouri Supreme Court

173 S.W. 1059

263 Mo. 677

THE STATE v. JAMES UNDERWOOD, Appellant

Supreme Court of Missouri, Second Division

February 23, 1915

Appeal from Jackson Criminal Court. -- Hon. E. E. Porterfield Judge.

Affirmed.

Handy & Swearingen for appellant.

(1) The court erred in giving instructions 3, 4, 5, 6 and 7 on behalf of the State. State v. Edwards, 203 Mo. 539; State v. Herrold, 97 Mo. 106; State v Vaughan, 141 Mo. 514. (2) The court erred in refusing defendant's instructions A and B. The court undertook to instruct the jury on circumstantial evidence, but we contend that by reason of the fact the court gave an instruction on self-defense over the objection of defendant, the instruction on circumstantial evidence was of no value to the defendant and tended to mislead the jury more than it did to guide them. The defendant denied killing Johnson and the contention of the defendant is that if Johnson was murdered at all, it was after he and Miller left him at the Intercity Viaduct. Our contention is, that when the court gave an instruction on circumstantial evidence and then gave one on self-defense the two instructions were conflicting and the court committed reversible error; if the blow delivered by the defendant at the house of Daisy Long caused the death of Johnson, then it was error to give instructions on circumstantial evidence; if, on the other hand the blow did not cause the death of Johnson, then it was error to give instructions on self-defense. In State v. Herrold, 97 Mo. 106, this court said: "When two instructions are conflicting, it cannot be told which the jury took for their guide, instructions should not be given upon which there is no evidence to base them." Stevenson v. Hancock, 72 Mo. 612; Bluedorn v. Railroad, 108 Mo. 450; State v. Edwards, 203 Mo. 539.

John T. Barker, Attorney-General, and S. P. Howell, for the State.

(1) Where complaint is made that the court erred in admitting or rejecting evidence, and such testimony is not pointed out in the motion for a new trial, or in appellant's brief, such assignment is not available on appeal. State v. Brown, 168 Mo. 474; State v. Bartlett, 170 Mo. 672; State v. Holden, 203 Mo. 584; State v. Whitsett, 232 Mo. 529. (2) Where there is any substantial evidence submitted on the trial to support the verdict, this court will not interfere. State v. Howell, 100 Mo. 659; State v. Orr, 64 Mo. 445; State v. Dickson, 78 Mo. 450; State v. Howell, 117 Mo. 346; State v. Lackland, 136 Mo. 32; State v. Miller, 156 Mo. 76; State v. Tettaton, 159 Mo. 380; State v. Barrington, 198 Mo. 23; State v. Rumfelt, 228 Mo. 451; State v. Jackson, 95 Mo. 661; State v. Sassman, 214 Mo. 738; State v. Concelia, 250 Mo. 424. (3) Where objection to the instructions given is not made a ground of the motion for a new trial, such error, if any, is not reviewable on appeal. It is urged in appellant's brief that the court erred in instructing the jury on selfdefense and circumstantial evidence. In view of the fact that no complaint whatever is made in the motion for a new trial to the giving of the instructions on circumstantial evidence and self-defense, this assignment urged in appellant's brief is not properly preserved to entitle it to consideration on appeal. Under the circumstances of this case the instructions named would not be reviewable for the further reason that they are favorable to the defendant and, therefore, he will not be heard to complain. State v. Brannon, 206 Mo. 636; State v. George, 214 Mo. 267; State v. Foley, 220 Mo. 89; State v. Whitsett, 232 Mo. 529; State v. Connors, 245 Mo. 477; State v. Bostwick, 245 Mo. 486; State v. Foley, 247 Mo. 607; State v. Horton, 247 Mo. 663; State v. Brown, 209 Mo. 413; State v. Woolard, 111 Mo. 256; State v. Shelton, 223 Mo. 138. (4) In instruction number two, the elements constituting murder in the first and second degrees are indicated and the terms "wilful," "felonious," "deliberately," "premeditated," "malice" and "aforethought" are correctly defined. State v. Myers, 221 Mo. 698; State v. Wright, 134 Mo. 404; State v. Weeden, 133 Mo. 75; State v. Fitzgerald, 130 Mo. 420; State v. Grant, 152 Mo. 66; State v. Tettaton, 159 Mo. 365; State v. Harper, 149 Mo. 521. Instruction number three correctly advised the jury as to the crime of murder in the first degree. State v. Thomas, 78 Mo. 337. In instruction number four the elements necessary to constitute murder in the second degree are correctly stated. State v. Wilson, 95 Mo. 447; State v. McCarver, 194 Mo. 728; State v. Myers, 221 Mo. 614. Instruction number five properly stated the facts that must be shown by the evidence in order to find the defendant guilty of manslaughter in the fourth degree. State v. Hyland, 144 Mo. 302; State v. Thomas, 78 Mo. 327; State v. Heath, 237 Mo. 270. In instruction number six the character of the evidence by which the intent to commit a criminal act may be shown is announced. State v. Merker, 189 Mo. 320. Instruction number seven on the proof or failure of proof of motive is in an approved form. State v. Duestrow, 137 Mo. 74; State v. Barrington, 198 Mo. 23; State v. David, 131 Mo. 396. Instruction number eight is an approved instruction on presumption of innocence and reasonable doubt. State v. Knock, 142 Mo. 524; State v. Hudspeth, 159 Mo. 208; State v. Neustin, 25 Mo. 123; State v. Cushenberry, 157 Mo. 182. In instruction number nine, the circumstantial evidence rule is announced. State v. Bauerle, 145 Mo. 16; State v. Tettaton, 159 Mo. 367; State v. Taylor, 134 Mo. 151; State v. David, 131 Mo. 398; 21 Cyc. 1032. In instruction number ten the law as to the right of self-defense is correctly anounced. State v. McCarver, 194 Mo. 729; State v. Groves, 243 Mo. 550; State v. Lewis, 248 Mo. 508. In instruction number eleven the rule as to credibility of witnesses is properly stated. State v. Hicks, 92 Mo. 434; State v. Henderson, 186 Mo. 492; State v. Hudspeth, 159 Mo. 200.

OPINION

WALKER, J.

An information was filed by the prosecuting attorney in the criminal court of Jackson county charging defendant with murder in the first degree in having killed one Joseph Johnson in Kansas City on the night of October 8, 1913. Upon a trial the defendant was convicted of murder in the second degree and his punishment assessed at imprisonment in the penitentiary for a term of twenty years. From this sentence defendant has perfected this appeal.

On the night of October 8, 1913, the deceased, a farmer from the State of Kansas, went, in company with two or three others at about 12:30 o'clock a. m., in defendant's automobile, the latter being a chauffeur operating a machine for hire, to a house of prostitution. As they came in one of the girls heard the defendant say to the keeper of the house that he had brought "a bunch that had plenty of 'jack,'" meaning money. They remained at the house probably half an hour, took several rounds of drinks, and then went away in the defendant's machine. Half an hour or an hour later defendant returned with the deceased, the latter being almost helpless from the effects of liquor. After they had gone to the room of one of the girls they were served with beer, but the deceased was so drunk that he was unable to hold his glass and it was taken from him by the girl. The woman who kept the house was named Daisy Long. In payment for the drinks the deceased gave her a five dollar bill, which she kept, giving him no change, and immediately left the room. Defendant left the room with her, but returned in a few minutes and demanded a dollar from the deceased for bringing him to the house. The deceased searched his pockets and declared he had no money but had been robbed. The defendant denied this, adding, "You will pay me you s -- of a b or I will kill you." The deceased reached for his hat, when defendant struck him over the head with either a gun or a "black-jack." The latter is explained to be an instrument used by criminals in the nature of a loaded piece of hose or other soft exterior substance filled with lead, iron or other metal, and causes no abrasion of the outer skin when a blow is struck with it. The blow felled the deceased to the floor. Immediately thereafter Daisy Long, the keeper of the house, entered and held a hurried inaudible conversation with defendant, and again left the room. As she went out defendant pushed Marie Haley, in whose room they then were, against the door and, thrusting a gun into her face, said, "Don't you say anything about this or I will kill you." He then left the room and Marie Haley ran out into the hall and screamed, "Oh my God, somebody come up and get this man [deceased], he is dying." In answer to this call, Daisy Long and a creature named Rats Miller with whom she was then living, rushed into the room, followed by a negro maid and another inmate of the house. The maid and the girl who had just entered procured water and washed the blood from the head and face of deceased, and assisted by Rats Miller, laid him on the bed. The deceased at the time was either in a semi-conscious condition from drink or the effects of the blow, and groaned as he rolled from side to side. Daisy Long then said to the defendant, "What shall we do with him [meaning the deceased]?;" to which the defendant replied, "I will take him and dump him some place." Marie Haley asked the defendant if he would kill anybody, and he replied that it was an every night occurrence with him. Daisy Long then said to the defendant, "Jimmy, don't go away, come back and take this man from my house." Rats Miller and the defendant and a man named Red Anderson who had been visiting the house carried or assisted the deceased downstairs to the automobile, which was standing before the entrance. Several persons who witnessed the removal of the...