State v. Warren

Citation33 S.W.2d 125
Decision Date25 November 1930
Docket NumberNo. 30203.,30203.
PartiesTHE STATE v. ROSCOE F. WARREN, Appellant.
CourtUnited States State Supreme Court of Missouri

Appeal from Jackson Circuit Court. Hon. Ben Terte, Judge.

REVERSED AND REMANDED.

Ira B. McLaughlin and George V. Aylward for appellant.

(1) The evidence is insufficient to sustain the verdict of murder in the first degree, in that there is no evidence of deliberation, i.e., prolonged premeditation, a killing in the cool state of the blood. State v. Snow, 293 Mo. 143, 238 S.W. 1071; State v. Kyles, 247 Mo. 640; State v. Speyer, 207 Mo. 540; State v. Minor, 193 Mo. 597; State v. Silk, 145 Mo. 240; State v. Crabtree, 111 Mo. 136; State v. Gartrell, 171 Mo. 489; State v. Gieseke, 209 Mo. 331; State v. Ballance, 207 Mo. 607; State v. McKenzie, 177 Mo. 699; State v. Wilson, 98 Mo. 440. (2) The court erred in failing to define the term "just provocation" as that term is used in Instruction S-1, and in failing to instruct the jury as to the provocation engendered by insults, opprobrious epithets and insulting gestures which will reduce a killing from first to second degree murder. State v. Gartrell, supra; State v. Gieseke, supra; State v. Ballance, supra. (3) The court erred in refusing to give to the jury instruction lettered D-D requested by the defendant, thereby permitting the jury to consider as substantive evidence testimony which was competent only for impeachment purposes. State v. Little, 228 Mo. 273; Gunther v. Roy, 74 Mo. App. 597; State v. Northington. 268 S.W. 59: State v. Broaddus. 315 Mo. 1279, 289 S.W. 792; State v. Swain, 68 Mo. 615; Chawkley v. Ry. Co., 317 Mo. 782, 297 S.W. 26; State v. Douglas, 312 Mo. 373, 278 S.W. 1026; State v. McKenzie, 102 Mo. 620; State v. Weeden, 133 Mo. 70; State v. Craft, 299 Mo. 332, 253 S.W. 228; Rock v. Keller, 312 Mo. 458, 278 S.W. 766; State v. Burns, 312 Mo. 673, 280 S.W. 1032. (4) The court erred in failing to give to the jury a correct instruction embodying the principle suggested by defendant's refused Instruction D-D. State v. Hendricks, 172 Mo. 654; State v. Kilgore, 70 Mo. 558; State v. Jones. 61 Mo. 232; State v. Stonum, 62 Mo. 596: State v. Reed, 154 Mo. 122; State v. Moore, 160 Mo. 443; State v. McKenzie, 228 Mo. 385; State v. Conway, 241 Mo. 271. (5) The court erred in giving to the jury Instruction S-9. This instruction assumed that if the defendant was not insane, he committed the crime of first degree murder. State v. Jordan, 306 Mo. 3, 268 S.W. 70: State v. Wheeler, 79 Mo. 366; State v. Castor, 93 Mo. 242; State v. Ferguson, 221 Mo. 524; State v. Langley, 248 Mo. 545; State v. Murphy, 292 Mo. 275, 237 S.W. 536; State v. Collins, 292 Mo. 102, 237 S.W. 516; State v. Hersh. 296 S.W. 433; State v. Hall, 7 S.W. (2d) 1001. (6) The court erred in giving to the jury Instruction No. S-10. (a) It assumes that if defendant was not insane he committed the crime of first degree murder. State v. Meininger, 306 Mo. 675, 268 S.W. 76; State v. Burns, 268 S.W. 80. (b) It details portions of the evidence which it directs the jury to consider on the issues of defendant's insanity, but dwarfs the importance of other essential parts of the evidence on that issue by omitting any mention thereof. State v. Edelen, 288 Mo. 160, 231 S.W. 589; State v. Rutherford, 152 Mo. 124; State v. Fish, 195 S.W. 998; State v. Malloch, 269 Mo. 235, 190 S.W. 266. (7) The court erred in giving to the jury Instruction No. S-11. It directs a verdict of guilty upon a finding that defendant "committed the crime as charged," i.e., murder in the first degree, thereby ignoring the instructions characterizing the lesser degrees of felonious homicide authorized by the evidence. State v. Brown, 104 Mo. 365; State v. McCaskey, 104 Mo. 644; State v. Marion, 235 Mo. 359; State v. Constantino, 181 S.W. 1157; State v. Baker, 246 Mo. 357. (8) The court erred in giving to the jury Instruction S-12. (a) It directs a verdict of murder in the first degree and does not include the necessary elements of that crime. State v. Speyer, 207 Mo. 540; State v. Davis, 12 S.W. (2d) 427; State v. McNamara, 212 Mo. 150; State v. Bohanan, 76 Mo. 562; State v. Slusher, 301 Mo. 285, 256 S.W. 819; State v. Gabriel, 301 Mo. 365, 256 S.W. 767; State v. Jones, 309 Mo. 50, 273 S.W. 731; State v. Welch, 311 Mo. 476, 278 S.W. 759; State v. Helton, 234 Mo. 559; State v. Swarens, 294 Mo. 139. (b) It is an unwarranted comment on the evidence. invades the province of the jury and belittles the effect of the evidence of defendant's insanity. Sec. 4038, R.S. 1919; State v. Warren, 317 Mo. 843, 297 S.W. 402; Hartman v. Hartman, 314 Mo. 305; Rock v. Keller, 312 Mo. 458, 278 S.W. 768; Everly v. Everly, 297 Mo. 196, 249 S.W. 91; State v. Yates. 301 Mo. 255, 256 S.W. 812; State v. Northington, 268 S.W. 59; State v. Mathis, 18 S.W. (2d) 9; State v. Cole, 304 Mo. 105, 263 S.W. 210. (9) The court erred in giving to the jury instruction No. S-15. It is an unwarranted comment upon a portion of the evidence, it invades the province of the jury and dwarfs the importance of the testimony of the experts. Spencer v. Railroad Co., 317 Mo. 492, 297 S.W. 357; High v. Railroad Co., 318 Mo. 444, 300 S.W. 1105; Breeze v. Railroad Co., 4 S.W. (2d) 427.

Stratton Shartel, Attorney-General, and A.M. Meyer, Assistant Attorney-General, for respondent.

(1) It is a fair inference from the evidence that a man of defendant's temperament would plan and deliberate a murder with a view to dramatic effect — would choose the dramatic moment and setting for the crime. The fact that he was successful in that effort is evidence of deliberation and premeditation rather than of the absence of those elements. In addition we have the threats of defendant, his statements after the crime, his preparations for its commission, which consisted of obtaining the lethal weapon and going to the meeting with the gun in his hand concealed by his overcoat, his cold, icy smile of deadly anticipation at his associate, Briggs, his ready and timely acceptance of the dramatic moment when it came. Even the facts, if they be such, that he turned pale and exhibited evidences of excitement as the crucial moment approached are evidence against the defendant rather than for him. Only an insensate brute could approach the fruition of a plan to murder without similar evidences, and the longer the plan had been maturing the higher the tension upon a sensitive nervous system would become. There was ample evidence to sustain the verdict of murder in the first degree. State v. Pagels, 92 Mo. 300. (2) Instruction S-1 did not attempt to define the term "lawful provocation." Failure to define the term "just provocation" does not render the definition of deliberation erroneous, and instruction S-1 was unexceptionable in form. State v. Grant, 152 Mo. 57; State v. Wieners, 66 Mo. 13; State v. Fairlamb, 121 Mo. 137; State v. Barrington, 198 Mo. 102. The defendant should have requested a definition of these terms if he desired the court to comment upon the evidence regarding the language of the resolution being read by Deskins at the time of the homicide. State v. Padgett, 289 S.W. 954. Appellant asked and the court gave an instruction defining lawful provocation which would reduce the crime to manslaughter, as distinguished from what is sometimes called "just provocation" which has no technical signification and is anything which does in fact arouse a sudden passion inconsistent with deliberation. No instruction was necessary to define this term, therefore, even though a definition had been requested. State v. Grant, supra, 70. (3) There was no error in the refusal of the court to give the defendant's offered Instruction D-D. It is the duty of the defendant upon a collateral matter, to formulate and present a correct instruction. The record shows, as to the matters alleged in this connection that Neale Warren as a witness for the defendant testified on cross-examination that he took a gun away from his father on the morning of the homicide. He denied that at that time his father (the defendant) threatened the life of deceased. In rebuttal, the State's witness Smith testified that shortly after the homicide Neale Warren had stated to him that he had disarmed his father the morning before the homicide and had taken a gun away from him, but Smith refused to testify that Warren had said anything about any threats against deceased and others. There was therefore no contradiction or impeachment of Warren by prior inconsistent statements and the court properly refused to give an instruction not based upon evidence. (4) Instruction S-9 correctly submitted the defense of insanity and followed, in all particulars, approved precedents. State v. Pagels, 92 Mo. 300; State v. Duestrow, 137 Mo. 69; State v. Todd, 248 S.W. 941; State v. Weagley, 286 Mo. 688; State v. Holloway, 156 Mo. 222; State v. Speyer, 207 Mo. 555; State v. Paulsgrove, 203 Mo. 200. (5) Instruction S-10 was not erroneous. It did not err in assuming (if it did assume) that defendant killed deceased. State v. Duestrow, 137 Mo. 71. (6) Instruction S-12 was in approved form. State v. Paulsgrove, 203 Mo. 203. (7) Instruction S-15 was in approved form. State v. Duestrow, 137 Mo. 75; State v. Crane, 202 Mo. 84.

DAVIS, C.

Pursuant to a four-days' trial in the Circuit Court of Jackson County, defendant was convicted by a jury of murder in the first degree as charged in the indictment, and his punishment assessed at death. He appealed from the judgment entered on the verdict.

The record establishes that this case was here previously on appeal, and that it was reversed and remanded for a new trial (State v. Warren, 317 Mo. 843, 297 S.W. 397). Consequently, we refer to the opinion of BLAIR, J., for a detailed statement of the facts. However, as the errors now assigned are unlike the errors assigned on the prior appeal, a plenary statement of the facts is unnecessary.

The evidence adduced on the part of the State warrants the finding...

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