State v. Underwood
| Decision Date | 23 February 1915 |
| Docket Number | No. 18658.,18658. |
| Parties | STATE v. UNDERWOOD. |
| Court | Missouri Supreme Court |
Appeal from Criminal Court, Jackson County; E. E. Porterfield, Judge.
James Underwood was convicted of murder in the second degree, and appeals. Affirmed.
Handy & Swearingen, of Kansas City, for appellant.
John T. Barker, Atty. Gen. (S. P. Howell, of Jefferson City, of counsel), for the State.
Instruction No. 1: This instruction correctly sets out the form the verdict should take, varying according to the facts established by the evidence.
Instruction No. 2: In this instruction the elements constituting murder in the first and second degrees are indicated, and the terms "willful," "felonious," "deliberately," "premeditated," "malice," and "aforethought" are correctly defined. State v. Myers, 221 Mo. 598, 121 S. W. 131; State v. Wright, 134 Mo. 404, 35 S. W. 1145; State v. Weeden, 133 Mo. 70, loc. cit. 75, 34 S. W. 473; State v. Fitzgerald, 130 Mo. 407, loc. cit. 420, 32 S. W. 1113; State v. Grant, 152 Mo. 57, loc. cit. 66, 53 S. W. 432; State v. Tettaton, 159 Mo. 354, loc. cit. 365, 60 S. W. 743; State v. Harper, 149 Mo. 514, loc. cit. 521, 51 S. W. 89.
Instruction No. 3: This correctly advised the jury as to the crime of murder in the first degree. State v. Thomas, 78 Mo. 327, loc. cit. 337.
Instruction No. 4: The elements necessary to constitute murder in the second degree are correctly stated in this instruction. State v. Banks, 258 Mo. 479, 167 S. W. 505 (); State v. Wilson, 98 Mo. 440, loc. cit. 447, 11 S. W. 985; State v. McCarver; 194 Mo. 717, loc. cit. 728, 92 S. W. 684; State v. Myers, 221 Mo. 598, loc. cit. 614, 121 S. W. 131.
Instruction No. 5: This instruction 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. Banks, 258 Mo. 479, 167 S. W. 505; State v. Hyland, 144 Mo. 302, 46 S. W. 195; State v. Thomas, 78 Mo. 327; State v. Heath, 237 Mo. 255, loc. cit. 270, 141 S. W. 26.
Instruction No. 6: The character of evidence by which the intent to commit a criminal act may be shown is announced in this instruction. State v. Merkel, 189 Mo. 315, loc. cit. 320, 87 S. W. 1186.
Instruction No. 7: This instruction on the proof or failure of proof of motive is in an approved form. State v. Duestrow, 137 Mo. 44, loc. cit. 74, 38 S. W. 554, 39 S. W. 266; State v. Barrington, 198 Mo. 23, 95 S. W. 235; State v. David, 131 Mo. 380, loc. cit. 396, 33 S. W. 28.
Instruction No. 8: This is an approved instruction on presumption of innocence and reasonable doubt. State v. Knock, 142 Mo. 515, loc. cit. 524, 44 S. W. 235; State v. Hudspeth, 159 Mo. 178, loc. cit. 208, 60 S. W. 136; State v. Neuslein, 25 Mo. 123; State v. Cushenberry, 157 Mo. 169, loc. cit. 182, 56 S. W. 737.
Instruction No. 9: The circumstantial evidence rule is here announced. State v. Bauerle, 145 Mo. 16, 46 S. W. 609; State v. Tettaton, 159 Mo. 367, 60 S. W. 743; State v. Taylor, 134 Mo. 109, loc. cit. 151, 35 S. W. 92; State v. David, 131 Mo. 380, loc. cit. 398, 33 S. W. 28; 21 Cyc. p. 1032.
The defendant complains because the court refused to give instructions A and B on circumstantial evidence. Instruction A was not justified under the testimony submitted, for the reason that there was direct evidence that the defendant struck the deceased with his revolver while at the Daisy Long House. Instructions Nos. 6, 8, and 9 as given by the court substantially covered the matter suggested in defendant's requested instruction B. The rule is firmly established that the court does not err in refusing an instruction asked by the defendant, where instructions have already been given which cover the same subject. State v. Reed, 154 Mo. 122, loc. cit. 130, 55 S. W. 278; State v. Pierce, 136 Mo. 34, loc. cit. 39, 37 S. W. 815; State v. Dipley, 242 Mo. 461, loc. cit. 480, 147 S. W. 111; State v. Connors, 245 Mo. 477, 150 S. W. 1058.
Instruction No. 10: Here the law as to the right of self-defense is correctly announced. State v. Banks, 258 Mo. 479, 167 S. W. 550 (); State v. McCarver, 194 Mo. 717, loc. cit. 729, 92 S. W. 684; State v. Greaves, 243 Mo. 540, loc. cit. 550, 147 S. W. 973; State v. Lewis, 248 Mo. 498, loc. cit. 508, 154 S. W. 716.
Instruction No. 11: The rule as to credibility of witnesses is properly stated in this instruction. State v. Hicks, 92 Mo. 431, loc. cit. 434, 4 S. W. 742; State v. Henderson, 186 Mo. 473, loc. cit. 492, 85 S. W. 576; State v. Hudspeth, 159 Mo. 178, loc. cit. 200, 60 S. W. 136.
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 20 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 $5 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 semiconscious 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 deceased from the house, state that he was so helpless from loss of blood or drink that it was necessary for the defendant and Miller to catch him by the shoulders and practically carry him down stairs. He was placed in the automobile. Miller took a seat by his side. The defendant cranked his machine and started away, going west on Sixth street towards the bluffs. It was then about 1:30 o'clock in the morning, or possibly later; the negro maid testified that it was 2 o'clock. An hour or more thereafter the defendant and Rats Miller returned to the Long house and were admitted by the negro maid. The defendant stayed but a short time, but Miller remained during the balance of the night.
About 7 o'clock that morning, two police officers in the vicinity of Sixth and Bluff streets, looking down from the Interstate viaduct, saw the body of a man lying at the foot of the retaining wall about 15 feet from the edge of the viaduct. The body was lying 8 or 10 feet from the foot of a retaining wall, which extended from the bottom of the cut to where the officers were, a height of about 46 feet. Along the upper edge of this bluff or cut was a fence 4 feet high at the point where the officers stood when they discovered the body. It was resting on some iron pipes which inclosed signal wires, near to and parallel with railroad tracks laid along the center of the cut. Examining the body, a cut was found on top of the head; the face was bruised, the abrasions being filled with cinders; the eyes...
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