State v. Weeden

• Decision Date: 03 March 1896
• Citation: 34 S.W. 473,133 Mo. 70
• Parties: The State v. Weeden, Appellant
• Court: Missouri Supreme Court

34 S.W. 473

133 Mo. 70

The State v. Weeden, Appellant

Supreme Court of Missouri, Second Division

March 3, 1896

Appeal from Polk Circuit Court. -- Hon. Argus Cox, Judge.

Reversed and remanded.

Rechow & Pufahl for appellant.

(1) The record fails to show an arraignment and the conviction can not stand. State v. Williams, 117 Mo. 379; State v. Walker, 119 Mo. 468. (2) The record must show that what took place amounted to an arraignment. Fitzpatrick v. People, 98 Ill. 260; Lynch v. Commonwealth, 88 Pa. 193; Ray v. People, 6 Colo. 231. (3) An arraignment consists in reading the indictment to the defendant and asking him whether he is guilty or not guilty of the offense charged therein. 1 Bishop's Crim. Proc. [1 Ed.], sec. 412. (4) It was error for the court to call the jury; this duty devolved upon the proper officer. State v. Hultz, 106 Mo. 48; State v. Wiley, 109 Mo 444. (5) Defendant's challenge to the array should have been sustained. State v. Smith, 90 Mo. 41; R. S 1889, sec. 8188. (6) Defendant's challenge to jurors summoned by the sheriff and his deputies since the beginning of the term of court should have been sustained. People v. Felker, 61 Mich. 114. (7) The record fails to show that the defendant was present when the jury returned the verdict and the case will have to be reversed for that reason. R. S. 1889, sec. 4237; French v. State, 55 N.W. 568; State v. Jones, 61 Mo. 235; State v Buckner, 25 Mo. 172; State v. Able, 65 Mo. 38. (8) The admission of Isaac Gregg's testimony as to what he was told and saw the day after the difficulty was highly prejudicial, and the cause should be reversed for that reason. And the testimony as to defendant's moral character should, under the circumstances, not have been admitted, as it was shown that it related to his occasionally taking a drink and getting under the influence of liquor. (9) The third instruction given on the part of the state does not define malice as approved by this court. It entirely omits the fact that the act must be wrongful and intentionally done. State v. Schoenwald, 31 Mo. 157; Buckley v. Knapp, 48 Mo. 160; Sharswood's Blackstone, book 4, p. 198; Anderson's Law Dict., p. 648. (10) The fifth instruction is not the law; it entirely ignores the purpose for which defendant entered into the difficulty. Even if he entered into it voluntarily (which the evidence fails to show), it must further appear that it was with the intent to commit a felony. State v. Smith, 125 Mo. 2; State v. Lewis, 118 Mo. 84; State v. Gilmore, 95 Mo. 554; State v. Davidson, 95 Mo. 155; State v. Partlow, 90 Mo. 608. (11) The motion for new trial should have been sustained for various reasons therein stated. It should have been sustained for the reason that juror W. E. Loafman had formed and expressed an opinion before he was impaneled. State v. Taylor, 64 Mo. 361; State v. Burnside, 37 Mo. 347; State v. Wyatt, 50 Mo. 309; U.S. v. Fries, 3 Dall. 515; State v. Hultz, 106 Mo. 48; State v. Gonce, 87 Mo. 629; Graham v. State, 13 S.W. 1010; Washburn v. State, 20 S.W. 715.

R. F. Walker, attorney general, and Morton Jourdan, assistant attorney general, for the state.

(1) Defendant was formally arraigned. If he had not been, his pleas of not guilty waived the necessity of arraignment. State v. Grate, 68 Mo. 22; State v. Saunders, 53 Mo. 234; State v. Braunschweig, 36 Mo. 397. (2) It is not a substantial ground for reversal that an elisor appointed by the court after the sheriff had been disqualified, summoned persons as jurors who had been summoned by the sheriff, unless it appears that such jurors so summoned were incompetent or unfit to sit as triers of the case. State v. Wiley, 109 Mo. 439. Besides, the challenge was not to the array but to the polls, and the attempted challenge to the array was thereby waived. State v. Clark, 26 S.W. 562. (3) The record proper, although imperfectly preserved, shows the presence of the defendant during each day of the trial. A record showing the presence of the prisoner at the beginning of each day will be held sufficient. State v. Yerger, 86 Mo. 33; State v. Lewis, 69 Mo. 92. The record shows the presence of the prisoner on the morning of the day when the verdict was rendered. This is sufficient. State v. Bickel, 7 Mo.App. 571. (4) It was competent for a witness who had visited the scene of the difficulty to describe the appearance of the ground, the tracks and other indications of a conflict. Physical facts are often the most convincing testimony. State v. Crow, 107 Mo. 341; State v. Buchler, 103 Mo. 203; State v. Weiners, 66 Mo. 11. (5) Collateral facts may be given in evidence if they are so connected with the main fact as to be necessary to its proper explanation. State v. Earnest, 70 Mo. 520. (6) In the following cases it was held that testimony as to tracks and other evidence of physical facts might be given by persons who had visited and examined the scene of the crime. Clark v. State, 26 S.W. 68; Pilcher v. State, 25 S.W. 24; Com. v. Pope, 103 Mass. 440; State v. Reitz, 83 N.C. 634. (7) The definition of "malice" as given by the court in the third instruction for the state is in the form repeatedly approved by this court. State v. Gee, 85 Mo. 649. The instructions taken and construed together as they should be, correctly declare the law and are therefore not subject to substantial objection. State v. Berkley, 109 Mo. 665.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess, J.

This is an appeal by defendant from a judgment of the Polk circuit court, whereby he was sentenced to imprisonment for two years in the penitentiary, upon the verdict of a jury in that court finding him guilty of feloniously assaulting, cutting, and stabbing with a knife, a deadly weapon, with intent to kill, one B. B. Temple, and fixing his punishment as above indicated.

On the eighteenth day of May, 1894, Temple was ploughing in his field, and defendant, passing near by, stopped to see him about the payment for some posts, which Temple had gotten from one Whitney, and which defendant claimed were his. Defendant testified that he was passing near by, when Temple called to him to come over, and that he went to where Temple was, in obedience to his call. This was denied by Temple, who testified that he did not see defendant until he was within a short distance of him. When they got near each other, after a few preliminary remarks, they began talking about the posts, which resulted in Temple being cut and stabbed with a knife in thirteen different places, twice to the hollow of the body. The evidence was somewhat conflicting as to who was the aggressor, but tended largely to show that defendant was. Defendant claimed to have acted in self-defense.

Over the objection and exception of defendant the court instructed the jury in behalf of the state as follows:

"1. The court instructs the jury that if they believe from the evidence that the defendant at the county of Polk and state of Missouri, within three years next before the finding of the indictment in this case feloniously, on purpose, and of his malice aforethought, stabbed and cut B. B. Temple with a knife, with intent to kill said Temple, and that said knife was a deadly weapon, they should find defendant guilty and assess his punishment at imprisonment in the penitentiary for a period of not less than two years, nor more than ten years."

"3. By the term 'malice aforethought' is meant that the act should have been thought of beforehand, for any length of time, however short, and that it was done maliciously. As used in the law, 'malice' does not mean mere spite or ill-will, but it means that condition of the mind that prompts a man to take the life of another, or do him some great bodily harm without just cause or excuse 'Feloniously' means wickedly and against the admonition of the law, that is, unlawfully.

"4. The court instructs the jury that the law presumes the defendant innocent until the state has proven his guilt beyond a reasonable doubt, but such a doubt to authorize an acquittal on that ground alone, should be a substantial doubt arising from a due consideration of all the facts and circumstances in evidence, and not a mere possibility of his innocence.

"5. You are instructed that if you believe from all the facts and circumstances in evidence that the defendant provoked, brought on, or voluntarily entered into a difficulty with B. B. Temple for the purpose, and with the intent of wreaking his vengeance upon said Temple, then and in that event the doctrine of self-defense does not apply in this case."

"7. The court instructs the jury that he who uses upon another at some vital part a deadly weapon of any kind must, in the absence of qualifying facts, be presumed to know that the effect is likely to be death, and knowing this must be presumed to intend death, which is the probable and ordinary consequence of such act; and if such deadly weapon is used without just cause, he must be presumed to do it wickedly or from a bad heart.

"If therefore the jury believe from the evidence in this case that the defendant willfully, feloniously, on purpose, and of his malice aforethought made an assault on one B. B. Temple, as charged in the indictment, by cutting and stabbing said Temple with a knife, in some vital part with a manifest design to use such weapon upon him, and without sufficient reason, cause, or extenuation, then it must be presumed that defendant intended to kill and murder said Temple."

The court gave the following instructions on part of the defendant:

"1. The jury are instructed that the indictment in this case is a mere written accusation and is no evidence whatever of the defendant's guilt.

"2. The jury are instructed that they are the sole and exclusive judges of...