State v. Vinso

• Citation: 71 S.W. 1034,171 Mo. 576
• Parties: STATE v. VINSO.
• Decision Date: 09 January 1903
• Court: United States State Supreme Court of Missouri

71 S.W. 1034

171 Mo. 576

STATE v. VINSO.

Supreme Court of Missouri, Division No. 2.

January 9, 1903.

MURDER—SECOND INFORMATION—EVIDENCE— INSTRUCTIONS—PALLIATION —EXCEPTIONS.

1. Under Const. art. 2, § 12, providing that prosecutions for felony may be either by indictment or information, as concurrent remedies, after a defendant has been arraigned on an information charging him with murder, and the cause continued, the prosecuting attorney at the

next term may file a new information charging the same crime, on which the defendant may be arraigned and tried.

2. In a prosecution for murder, the admission of evidence that, immediately after defendant knocked the deceased down with a rock, fracturing his skull, the bystanders attempted to arrest defendant, when he attacked them with a knife, and ran away, was not error, as being part of the res gestæ.

3. Evidence examined in a prosecution for murder in the first degree, and held to show deliberation.

4. Where defendant, three-fourths of an hour after having a quarrel with his uncle, went to the railway depot, and deliberately killed an entire stranger, the refusal of the court to instruct that "the passion aroused in defendant, if any, by his quarrel with his uncle, was a defense, or palliation for his unprovoked assault on the deceased," was not error.

5. Where the evidence shows the killing was with a deadly weapon, and but one intent— that of an intention to kill—can be deduced from defendant's act, the failure to instruct on manslaughter in the third degree was not error.

6. The amendment of Rev. St. 1899, § 2627, by Laws 1901, p. 140, providing that in criminal cases, whether requested or not, the court must instruct on all questions of law in the case, is declaratory of the law as previously announced by the court, and not a change of law, and now, as before this legislative declaration of the law, a judgment will not be reversed because of the failure of the court to perform this duty, unless an exception is properly saved to such error.

Appeal from circuit court, Lawrence county; Hy. C. Pepper, Judge.

John Vinso was convicted of murder, and appeals. Affirmed.

At the March term, 1902, of the Lawrence circuit court, the prosecuting attorney of said county filed an information charging the defendant, John Vinso, with murder, in the first degree, of William Walter Ward, at said county, on October 13, 1901. On October 23, 1901, the defendant had been committed on his preliminary examination to await the action of the circuit court, and on October 26, 1901, the prosecuting attorney filed an information in the clerk's office, charging the defendant with murder, and at the November term, 1901, defendant was duly arraigned thereon, and the cause, on defendant's application, was continued to the March term, 1902. At the March term, 1902, the prosecuting attorney, by leave of the court, filed the new information on which defendant was tried and convicted. As this information is in all respects sufficient, it is not deemed necessary to copy it in this statement. The defendant filed his motion to quash this information on the ground that it was filed without warrant or authority of law, which motion was overruled, and defendant saved his exception. The defendant was then duly arraigned on said second information. The testimony discloses that William Walter Ward was a young man about 24 years old. He was a switchman on a railroad at Dallas, Tex., at the time he was killed by defendant, but had been to Missouri on a visit to his father and mother, who resided at or near Monett. It appears that he came from Texas about Thursday or Friday preceding his death on Sunday, October 13, 1901. He had come to Pierce City that day between 1 and 2 o'clock, to visit a brother. He went up into the city, and was gone about 30 minutes, and the remainder of the time he spent with his brother at his house, and then walked over with him to the station, to return to Monett. A short time after deceased reached the depot, and while talking to his brother, Harry Kirk, and others, the defendant came walking to the station from the east. A freight train soon ran into the station on the main track, headed east. The defendant walked along by the train with his right hand under his coat. As he walked by the deceased and his companions, he said, "I can whip any G____d d____n son of b____ on the platform," and one of the party remarked to Mr. Kirk, "Kirk, he means that for you." Defendant walked on, turned, and came back by the crowd, repeating the challenge, and deceased said, "You didn't mean that for me." The defendant answered, "Any d____n s____n of a b____h." Deceased then asked him, "What have you got under your coat?" and defendant said, "I have got a 44, and can use it," and with that he stepped back, and threw a rock, which struck William W. Ward, the deceased, on the side of the head, crushing the skull, and inflicting a wound from which he died the next morning about 3 o'clock. He was never conscious after receiving the wound from the rock. Immediately after throwing the rock at Ward, defendant was surrounded by the bystanders, when he drew a knife, and forced his way out and fled. At the time Ward received the fatal wound he was standing with his hands in his pockets, and, according to the great weight of the evidence, was making no demonstration of violence toward the defendant. Defendant testified in his own behalf. According to his story, something like three-quarters of an hour prior to the homicide he met his uncle, George Tate, the deceased, Ward, and another man, and his uncle said he believed he would whip defendant just for fun, and deceased said to Tate, "Go get him;" that he backed off, and finally his mother got between them, and took defendant home. He had never seen Ward, the deceased, before. He says he was afraid Tate would thrash him, as he had done once before about a year prior to this time, and concluded he would take the first train out of Pierce City for Newton, Kan., where he had a brother living. He went over to the station to take a train west, and as he went he got the rock with which he afterward killed Ward. He came up on the station, saw Ward standing talking to his crowd, and concluded he would run a bluff on him; "thought he wouldn't jump on me." "I said I was the best man in town. No one made any reply at first, but after a little Ward said, `I can whip three like you,' and I made him no answer." And then deceased said, "`I used to whip two or three like you before breakfast,' and I said, `You never did whip a man like me,' and he said, `I'll show you,' and started towards me; and I had a rock, and he stepped two or three steps towards me, and I throwed at him, and didn't know whether I hit him or not." I was scared of him, because I had seen him with Tate and the other fellow, and I didn't know whether he had a gun or not. Waters, one of the two men who were with Tate that afternoon, testified that a man by the name of Forbes was the third man with them, and not the deceased, and that Tate, instead of seeking a fight with defendant, took him home, to keep him out of a fight with some other young men. George Tate also testified Forbes was the third man in his party that afternoon when the wordy altercation with defendant took place, and not Ward, the deceased. Indeed, the evidence is conclusive that the deceased had nothing to do with the brawl between defendant and his uncle, George Tate, and that that difficulty had nothing to do with the homicide. Other facts may be noted if necessary.

Adiel Sherwood and Jos. S. McIntyre, for appellant. The Attorney General and C. D. Corum, for the State.

GANTT, J. (after stating the facts).

1. The right of the prosecuting attorney to file a new information is challenged. If this prosecution had been by indictment, and the first indictment quashed, on the motion of the prosecuting attorney or defendant, for some defect, no doubt can be entertained that the same grand jury, if still in session, or a subsequent grand jury, might have preferred a new indictment; for such has been the unvarying rule wherever the common law obtains. Equally well settled is the rule that a grand jury may prefer a second indictment while the first is still pending, and the pendency of the first, unquashed by any formal order of the court, is no ground for abatement or bar to further prosecution. State v. Eaton, 75 Mo. 586; State v. Goddard, 162 Mo. 223, 62 S. W. 697, State v. Melvin, 166 Mo. 571, 66 S. W. 534; 1 Chitty's Crim. Law, 477; Wharton's Crim. Pl. & Pr. § 452. Under section 12 of article 2 of our constitution, as amended in 1900, "prosecutions for felony may be either by indictment or information, as concurrent remedies." If, as it is everywhere ruled, a new indictment may be preferred pending another, and even after arraignment and issue joined, what principle of proper procedure would deny the right of the prosecuting attorney to file a new information? As said in Kalloch v. Superior Court, 56 Cal., loc. cit. 230, "Each is but an accusation, in legal form, of the offense with which the prisoner stands charged, and for which he is to be placed on trial." No privilege of the prisoner is taken away. He is entitled to a copy of the information before he pleads, and every constitutional guaranty is vouchsafed to him that he would have in case of a new indictment preferred had the proceeding originally been by indictment. In neither is he entitled to notice of the intention to prefer a new indictment or to file a new information. While the point was not raised in the recent case of State v. E. Russell Bartlett (not yet officially reported; decided Dec. 16, 1902) 71 S. W. 148, it was, in effect, held by Sherwood, J., arguendo, that the prosecuting attorney could not file a new information in a county other than that in which the offense was committed, when a change of venue had been granted; but it was said that, as a new...