State v. Webb

• Decision Date: 06 January 1914
• Citation: 254 Mo. 414,162 S.W. 622
• Parties: STATE v. WEBB.
• Court: Missouri Supreme Court

162 S.W. 622

254 Mo. 414

STATE v. WEBB.

Supreme Court of Missouri, Division No. 2.

January 6, 1914.

1. CRIMINAL LAW (§ 102)—JURISDICTION.

Notwithstanding Rev. St. 1909, § 4221, providing that the judge of division No. 7 of the circuit court of Jackson county, when notified, shall open division No. 2 of the criminal court, but not until the case on trial in the circuit court is concluded, the fact that the judge of division No. 7, after being given notice to open division No. 2 as a criminal court, and having sat therein for a week, finished a civil case in division No. 7 while waiting for the challenges in a criminal case to be made, and presided in the juvenile court while the jury in division

No. 2 were considering their verdict, did not destroy his jurisdiction in the criminal court.

2. HOMICIDE (§ 142)—VARIANCE.

The fact that the mortal wound was in decedent's head instead of his body, as alleged, was a variance which was cured by the statutes as to variance (Rev. St. 1909, § 5114) and the statute of jeofails (section 5115).

3. HOMICIDE (§ 142)—PROOF—VARIANCE.

The fact that the pistol used by accused was automatic, and not a revolver, as alleged in the information, was not a fatal variance under the statutes as to variance, under Rev. St. 1909, § 5114, and the statute of jeofails (section 5115).

4. CRIMINAL LAW (§ 935) — NEW TRIAL — PREJUDICE OF JURY.

It is the duty of the court in a criminal case not to permit a conviction to stand which resulted from prejudice by the jury.

5. TRIAL (§ 110)—APPEAL—HARMLESS ERROR.

The mere offer of prejudicial evidence, which is excluded on objection, is not reversible error.

6. CRIMINAL LAW (§ 1037)—TRIAL—IMPROPER ARGUMENT—OBJECTION.

Accused's counsel must object to improper argument by the state's counsel, and ask the court to rebuke counsel, and save an exception to its failure to do so.

7. HOMICIDE (§ 338)—APPEAL—HARMLESS ERROR —MISCONDUCT OF COUNSEL.

In a prosecution for first degree murder by shooting, in which defendant claimed self-defense, the prosecuting attorney improperly asked the accused on cross-examination as to his cutting another on a different occasion, and on objection the court remarked, "No defense for such a question as that." He also asked another witness if he did not know accused had had trouble with countless men in the community, an objection to which was sustained. The prosecuting attorney also brought about 100 men in the courtroom to testify in rebuttal as to accused's bad reputation, only 6 of whom were permitted to testify, and stated in argument that the state brought witnesses by the score and put them on to tell what kind of a man accused was, until the defense stopped them, which remark was withdrawn on objection. He also told the jury what the testimony of the excluded witnesses would have been, and stated, without any evidence to support the statement, that accused's wife had fled from him on account of the revolver, which remark was withdrawn on objection, and in his closing argument the prosecuting attorney stated, rather dramatically, his belief in accused's guilt, and that the jury should place the burden of conviction upon him. Held, that the repeated introduction of obviously improper evidence and obviously improper remarks of counsel in argument was prejudicial to accused, and reversible error.

8. CRIMINAL LAW (§ 720½)—TRIAL—MISCONDUCT OF COUNSEL.

It is improper for the prosecuting attorney to state his belief in accused's guilt, and that he will assume the burden and responsibility of a conviction by the jury.

Appeal from Criminal Court, Jackson County; E. E. Porterfield, Judge.

Jasper Webb was convicted of first degree murder, and appeals. Reversed and remanded.

The information in this case is for murder in the first degree, and charges the defendant with having shot and killed Archie Whitwell on October 11, 1911. It is alleged that the weapon was a revolving pistol, and that a mortal wound was inflicted upon the body of said Whitwell. The jury convicted defendant, and fixed his punishment at death.

The defendant, at the time of the killing, was about 31 years of age, married, and had three children, and owned a small farm on which he lived near Oak Grove. The deceased was a young man about 31 years of age of slender build, and taller than the defendant. He had lived in the same neighborhood about 8 or 10 years.

John Webb, defendant's father, owned considerable land adjoining the farm of defendant, but had retired from the farm, leasing a portion of it to another son, Sam Webb, and a portion to Mr. James B. Snyder.

Sam Russell owned a farm adjoining the farms of defendant and his father. A small creek ran through Russell's land, cutting off a small part next to the Webb land. Russell had a bridge across the creek for his own convenience. Some time in October, 1910, Jesse Land and John Russell, a son of Sam, were husking corn in the Russell field beyond the bridge from the Webb land. Archie Whitwell, with a shotgun, came to them from the direction of the Webb land, but not from the direction of the bridge. He told them he had been hunting over on John Webb's land, and that defendant had ordered him off, and that he had told defendant to come down to the bridge and settle it; then, looking up, he said, "There he is now," and started towards the bridge with his gun. Defendant was then at or near the bridge. After Whitwell had gone about 20 yards, and when he was about 70 yards from defendant, the defendant shot at Whitwell with the gun. Whitwell said, "You little son of a bitch, shoot a man." Defendant walked away, and Whitwell went back to where the men were at work. One of them said to him, "Why didn't you shoot him?" and he answered, "I don't want to shoot anybody." A shot had struck Whitwell in the hand, and another in his knee. Defendant, immediately after the shooting, went to Independence, where he met Mr. Robinson, a deputy sheriff, and told him that he was in trouble, that he had told a boy who was hunting to keep off his place, and that the boy had teased him, and that on that day he had caught the boy on his place, and had been teased by him, and had shot him, but said he did not know how much he was hurt. Robinson advised him to go back home, and not consult a lawyer, unless he should be arrested, and he did so.

About the 30th of September, 1911, there was a horse show in Oak Grove. The defendant and Whitwell met there. One of them abused the other, and threatened to "get him yet." The state's witnesses testified that the defendant was the wrongdoer, and that Whitwell told him that he did not want to have any trouble with him. The defendant's witnesses testified that Whitwell was the aggressor, and that defendant told him that he did not want to have any trouble with him.

On Wednesday, the 11th of October, thereafter, the defendant was in search of a heifer that had strayed away. He engaged Mr. James Snyder to help him get her. He went to his home and got a different horse from the one he had been riding, and put harness on it, and procured a rope. He rode the horse thus harnessed, in company with Mr. Snyder, to the lot of his brother, Sam Webb, where the heifer was. He stated that his purpose was to rope the heifer, and tie her to the harness, and thus lead her home. The animal jumped over the gate, and escaped into a neighbor's pasture. Defendant and Snyder then went to see about buying some hogs. Mr. Snyder testified that the defendant said, when the heifer escaped, that he would "beef her" on the following Saturday. The defendant started home, and, when he got within about 100 yards of his home, at a point where the road was bordered with low brush, and of irregular windings, and somewhat hilly, he met Whitwell and Claude Elliott, a second cousin of Whitwell. They were about 30 yards apart when they became aware of each other's presence. All were on horseback.

Elliott testified that, just as they saw the defendant, Whitwell's horse went quickly to the front a few feet, and stopped. The defendant pulled off his right glove, and threw it on the side of the road, got off his horse, made a few steps forward, drew his gun, and said, "God damn you, I will fix you right here." He fired one shot. Whitwell said, "Oh, don't do that, man; what do you mean?" Defendant then walked a few steps, and shot again. Whitwell fell from his horse, and the defendant came up towards where he was lying in the road, and fired three more shots at a distance of about 7 feet, and then looked at the witness and said, "You see that, don't you?" Defendant then went to his house, and after a few minutes started on his harnessed horse towards independence. After going a short distance, he left his horse with Mr. Hill, and proceeded on Mr. Hill's horse.

The defendant used an automatic pistol. Immediately afterwards a shell was picked up about 26 feet from where Whitwell's body had lain, and another at a distance of about 20 feet. Other shells were picked up in close proximity to where the body lay. One bullet was dug out of the ground about a foot from the pool of blood indicating where Whitwell's head was lying; it had gone about 3 inches deep almost perpendicularly. Another bullet was found lying where the body lay. There was a wound in the right hand, one in the right arm, one in the groin. There was a bullet hole just behind the top of the ear, and one on the opposite side of the head, about an inch and a half higher up. The doctor who examined him said that the wound in the head was a mortal one, and that he did not examine the one in the groin.

A pocket knife was found shut in Whitwell's pocket; but he had no other weapon of any kind.

On his way to Independence, the defendant was met by Mr. Montgomery, a deputy marshal of Jackson county, and was placed under arrest. The officer testified that, when asked why he had shot deceased, defendant said that it was over an old grudge. John Gregg testified that he...