State v. Webb

• Decision Date: 02 February 1909
• Citation: 216 Mo. 378,115 S.W. 998
• Parties: STATE v. WEBB.
• Court: Missouri Supreme Court

115 S.W. 998

216 Mo. 378

STATE v. WEBB.

Supreme Court of Missouri, Division No. 2.

February 2, 1909.

1. HOMICIDE (§ 340)—INCLUDED OFFENSES— CONVICTION OF MANSLAUGHTER—EFFECT.

Where, in a prosecution for murder, defendant was convicted of manslaughter only, the court's charge on murder was thereby eliminated from the case.

2. SUICIDE (§ 3)—AIDING AND ABETTING IN SUICIDE — STATUTES — "MANSLAUGHTER IN FIRST DEGREE."

Rev. St. 1899, § 1822 (Ann. St. 1906, p. 1266), providing that every person deliberately assisting another in the commission of self-murder shall be deemed guilty of manslaughter in the first degree, changed the common-law rule that if one counsels another to commit suicide, and such other by reason of the encouragement and advice kills himself, the adviser is guilty

of murder as an aider and abettor, provided he is present when his advice is carried out.

For other definitions, see Words and Phrases, vol. 5, p. 4342.]

3. SUICIDE (§ 3)—AGREEMENT AS TO SUICIDE —REPENTANCE.

Where defendant and deceased, after having twice attempted to commit suicide and failed, prepared for a third attempt, when defendant repented and endeavored to persuade deceased to do the same, it was not necessary to establish his innocence of counseling and assisting decedent to commit suicide that decedent should have led defendant to believe that she also had abandoned her intent and then had killed herself of her own volition.

4. SUICIDE (§ 3)—COUNSEL AND ASSISTANCE —INSTRUCTIONS.

An instruction that if defendant procured a pistol with which he and deceased intended to commit suicide, and afterwards changed his mind and tried to escape the consequences of the agreement, but deceased refused to permit him to do so, and on account of defendant's physical weakness he could not by force leave her and she did the shooting by which she was killed and defendant was injured, defendant did not deliberately assist her to commit self-murder, and was not guilty of manslaughter in the first degree, was proper and should have been given.

5. CRIMINAL LAW (§ 781) — INSTRUCTIONS— STATEMENT BY ACCUSED—PRESUMPTIONS.

Where accused, when he was alleged to have signed a statement, was in a critical condition from a pistol shot wound near the heart, was also suffering from tuberculosis, was too weak to sign his name, and testified that he had no recollection whatever of ever having made the statement, the court should not have instructed on the presumption arising against defendant from statements made against him without qualifying it by requiring the jury to find that defendant was in such a condition of mind and body as to know the answers he was making and to understand the questions propounded to him.

Appeal from Circuit Court, Clay County; Francis H. Trimble, Judge.

Jesse B. Webb was convicted of manslaughter in the first degree, and he appeals. Reversed.

Ben A. Reed, W. J. Courtney, and Martin E. Lawson, for appellant. Elliott W. Major, Atty. Gen., and John M. Atkinson, Asst. Atty. Gen., for the State.

GANTT, P. J.

The defendant has appealed to this court from the conviction of manslaughter in the first degree, at the November term, 1907, of the circuit court of Clay county.

The prosecution was begun on November 7, 1906, by the prosecuting attorney of Clay county filing an information in the circuit court, duly verified, wherein he charged the defendant with having on the 11th day of October, 1906, feloniously, deliberately, premeditatedly, on purpose, and of his malice aforethought shot and killed one Inez Webb. He was duly arraigned and entered his plea of not guilty, and the cause, as above stated, was tried at the November term, 1907.

The evidence tended to show that on the 11th day of October, 1906, at the Peddicord Hotel, in Smithville, Clay county, on the morning of the 11th day of October, 1906, the defendant, Jesse Webb, and Inez Webb or Walkup were both shot. Defendant received a pistol bullet near the heart, and the deceased received three bullet wounds near the heart and one through the head. She died immediately. Prior to the shooting, for some months both the defendant and the deceased worked at the State Hospital for the Insane, at St. Joseph, Mo. They had associated together for some time, and the evidence tended to show that he was a consumptive. He quit work at the hospital October 1, 1906, and she quit work some two days later. They were both employed at the hospital as day nurses. He had been employed at the hospital about two years, and she had been employed there from seven to twelve months. They had been associated together for about two months. Dr. Woodson, the superintendent of the hospital, testified that Webb was run down and not strong, and he had prescribed malt and cod-liver oil for him. After leaving the hospital, defendant went down into the city of St. Joseph to live, and deceased followed him, and they remained together, holding themselves out as man and wife. After remaining a few days in St. Joseph, they went to Plattsburg to visit his relatives, where they remained a few days. While there he was very sick. They left Plattsburg saying they were going to Hot Springs, Ark., for his health, and started, but went to Smithville, where they remained several days. At Plattsburg the deceased said that when the defendant died she wanted to die too. The defendant in his testimony stated that she suggested that they commit suicide, but he refused. After reaching Smithville, however, they agreed to commit suicide together, and wrote letters to their relatives indicative of their intention so to do. The deceased bought morphine, which they both took on Monday night, but they woke up about 1 o'clock on Tuesday. The deceased then said she would get some strychnine. She got it, and they took it Tuesday night. The strychnine did not kill them, and they woke up about 10 or 11 o'clock Wednesday morning. The defendant then got the deceased to telephone to a Mr. James Reed at Trimble, Mo., to come to him at Smithville, and Reed in response arrived at Smithville that evening at 5 or 6 o'clock. Prior to Reed's arrival at Smithville, however, defendant purchased a revolver from a Mr. Dougherty, who was a clerk in a hardware store, and who loaded the revolver for him. When Reed arrived at Smithville, the deceased and the defendant were in bed. She represented herself as Mrs. Webb, and Reed sat down on the edge of the bed, and the defendant requested him to take defendant to Edgerton to his brother, Louis Webb. Reed started to get defendant's clothes for him, but the deceased got between Reed and the clothes, and told him that defendant was not going away from there; if he did, she would follow him and kill him. Reed then left them and told them he would be back in the morning, but before he reached the hotel the next morning both of them had been shot. Reed testified that the defendant was awfully weak and was spitting blood, and he could scarcely hear him talk. The defendant testified that the evening before the shooting he abandoned his purpose to destroy himself. And after Reed left the hotel that evening, he had a long talk with the deceased, endeavoring to persuade her to give up the idea of suicide, and he thought she had given it up, and they then agreed to take the pistol back to the store in the morning and get back what money they could; that the pistol was then put under the pillow until morning, and they went to sleep. He was awakened the next morning by something against his breast. As he opened his eyes, she said, "`Here is where we die,' and shot me." He testified that he knew no more until he heard the parties breaking into the room. The shooting occurred about 8:30 Friday morning. When the people broke into the room, they found the deceased dead and the defendant in a spasm. One of the witnesses testified that before they broke in the door he heard the man saying "Shoot me again." The other witness heard this statement, but he thought it was immediately after he got into the room. Defendant testified that he did not know in which hand the deceased held the revolver; that he had no recollection of her shooting herself.

The statement of the defendant was offered in evidence, which had been taken by the coroner, but the defendant testified that he had no remembrance of making any statement whatever. The statement was signed before the coroner by defendant's mark. In this statement the defendant said his wife did the shooting, and as soon as she shot him she laid down on the bed and shot herself two or three times. She put her arms around his neck, and said, "Oh, Jess, are you dead?" She said this, however, before she shot herself. He also stated that they were married a week before at Topeka, Kan., and then went to St. Joseph and Plattsburg, and then came to Smithville; that he had a hemorrhage from his lungs, which caused him to get off at Smithville. They had started to Hot Springs. His reason for wanting to die was that he had tuberculosis and did not think he could live long anyway, and she said her reason for dying was because she loved him and did not want to live without him. He also testified that his wife wrote a letter to her father and one to a Mrs. Hart. And he wrote one to his sister and mother, and they left a note requesting the landlady to...