State v. Woodward

• Decision Date: 12 December 1905
• Citation: 90 S.W. 90,191 Mo. 617
• Parties: STATE v. WOODWARD.
• Court: Missouri Supreme Court

90 S.W. 90

191 Mo. 617

STATE v. WOODWARD.

Supreme Court of Missouri, Division No. 2.

December 12, 1905.

1. HOMICIDE—INFORMATION—SUFFICIENCY.

An information charging that defendant feloniously, premeditatedly, and from malice aforethought did strike and beat deceased on the head with a club, inflicting and giving to him on the head a mortal wound, is insufficient, in failing to allege that the fatal stroke was done feloniously and of malice aforethought, and in leaving to conjecture whether the mortal wound was inflicted and given with the club.

2. WITNESSES—LEADING QUESTIONS.

The propounding of leading questions in examining witnesses is within the trial court's discretion.

3. HOMICIDE — REPUTATION OF DECEASED — EVIDENCE.

Where defendant, in a prosecution for homicide, introduces evidence reflecting on the good reputation of the deceased, the prosecution may rebut the evidence by proving his good reputation.

4. CRIMINAL LAW—EVIDENCE—CONVERSATION BETWEEN THIRD PERSONS.

In a prosecution for homicide, evidence as to conversations between a brother of defendant and a witness in deceased's restaurant in defendant's absence was inadmissible.

5. SAME—RES GESTÆ.

In a prosecution for homicide, evidence that defendant's brother, who was jointly indicted, had an open knife during the fatal difficulty, and that a third person was cut, was admissible as res gestæ.

6. WITNESSES — IMPEACHMENT OF CHARACTER —ACCUSED AS WITNESS.

In a prosecution for homicide, where defendant testifies as a witness, it is competent to attack his general moral character.

7. SAME—CONVICTION OF PRIOR OFFENSE.

Where defendant testifies in his own behalf, it is competent to show, by competent evidence, his prior conviction of a criminal offense, in order to affect his credibility,

8. CRIMINAL LAW — HARMLESS ERROR — INSTRUCTIONS.

In a prosecution for homicide, where defendant was jointly indicted with his brother, an instruction that defendant had the right to defend himself or his brother was not prejudicial to him.

9. SAME—DRUNKENNESS.

Voluntary drunkenness furnishes no justification for crime, and, if there is testimony in reference thereto, the court may so declare the law.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Clifford Woodward was convicted of manslaughter, and he appeals. Reversed.

This cause is here on appeal from a judgment of conviction, in the circuit court of Pemiscot county, of murder in the second degree. This prosecution is based upon an information filed by the prosecuting attorney of Pemiscot county, charging George and Clifford Woodward with murder in the second degree. The correctness and validity of the information being challenged, it is well to reproduce it. It is as follows:

"In the Circuit Court of Pemiscot County, Missouri. To February Term, 1904.

"State of Missouri, County of Pemiscot—ss.

"State of Missouri vs. George Woodward and Clifford Woodward.

"L. L. Collins, prosecuting attorney within and for the county of Pemiscot and state of Missouri, upon his official oath informs the court that George Woodward and Clifford Woodward, late of the county of Pemiscot and state of Missouri, on the 16th day of January, 1904, at the county of Pemiscot and state of Missouri, did then and there, in and upon the body of one Ed. Petigo, then and there being, unlawfully, willfully, feloniously, premeditatedly, on purpose, and of their malice aforethought make an assault, and with a certain dangerous and deadly weapon, to wit, a club, which said club was then and there of the length of four feet, of the breadth of two inches, and of the weight of 10 pounds, and which said club they, the said George Woodward and Clifford Woodward, then and there in their hands had and held, they, the said George Woodward and Clifford Woodward, did then and there unlawfully, willfully, feloniously, premeditatedly, on purpose, and of their malice aforethought strike and beat him, the said Ed. Pedigo, at and upon the right side of the head of him, the said Ed. Pedigo, with the club aforesaid, and inflicting on and giving to him, the said Ed. Pedigo, in and upon the right side of the head of him, the said Ed. Pedigo, one mortal wound, which said mortal wound was of the length of four inches and of the breadth of two inches, of which said mortal wound the said Ed. Pedigo, from the said 16th day of January, 1904, the year aforesaid, in the county aforesaid, until the 18th day of January, in the year aforesaid, in the county aforesaid, did languish, and, languishing, did live, on which said 18th day of January, in the year aforesaid, the said Ed. Pedigo, in the county and state aforesaid, of the mortal wound aforesaid, died; and so L. L. Collins, prosecuting attorney as aforesaid, upon his official oath as aforesaid, doth say that they, the said George Woodward and Clifford Woodward, him, the said Ed. Pedigo, in the manner and by the means aforesaid, willfully, unlawfully, feloniously, premeditatedly, on purpose, and of their malice aforethought did kill and murder, against the peace and dignity of the state.

"L. L. Collins, Prosecuting Attorney.

"L. L. Collins, prosecuting attorney within and for Pemiscot county, Missouri, being duly sworn, upon his oath says that the facts stated in the above and foregoing information are true, according to his best knowledge, information, and belief. L. L. Collins.

"Subscribed and sworn to before me this 19th day of January, 1904.

                     "[L. S.]           J. W. Green
                             "Clerk of the Circuit Court
                  "Harvey E. Averill, D. C."
                

Upon the trial the state's evidence tended to show that deceased was the proprietor of a pool hall, on one side of which he had a lunch counter. This pool hall was situated in the rear of George Myrick's saloon in the town of Steele, in Pemiscot county; and between the saloon and pool room was a small room called the "stove room." In the rear and to the side of the pool room was a small back yard known as the "bull pen." There was evidence to the effect that deceased and defendant had trouble on two former occasions, once at another pool room in Steele, and once when defendant and the Moore boy were about to have a fight during a charivari. When deceased prevented this fight, the defendant threatened deceased. This was some two weeks before the final difficulty. Deceased was sitting in the stove room about 7 o'clock on the night of the difficulty, talking to some one, when defendant came into the saloon. There was evidence to show that one, perhaps both, of them had been drinking some, but neither one was intoxicated. As he came in the front door, defendant said to Charles Johnson, the bartender: "Is there any God damn son of bitch in here that wants to fight?" To this remark, the bartender replied that he did not see any son of a bitch in there; that he might go into the back room. Defendant walked straight into the stoveroom, where he at once engaged in a controversy with deceased about some games of pool that deceased said he had played and had not paid for. Deceased asked him not to play any more till he had paid what he owed. Defendant said that he was going to play anyhow, and started into the pool room. A short time prior to this, deceased and defendant's brother, George Woodward, had some trouble in the pool room over some eggs that George had ordered, but refused to pay for. About the time defendant came into the pool room George Woodward again appeared, but no one seemed to know which way he came from. Defendant and deceased caught hold of each other and began pushing, when defendant exclaimed: "If you don't turn me loose, I will kill you." One witness testified that defendant said that he would not fight Pedigo (deceased) in his own house, but that he could whip any son of a bitch in there. After a mild fight in the pool room both combatants went out the side door into the bull pen; George Woodward going out with them. As soon as the ground was reached, defendant ran up against deceased and deceased pushed him back. George Woodward then ran up and struck at deceased twice, hitting him once on the neck or shoulder. Defendant was then heard to say: "I will kill the God damn son of a bitch." Defendant then picked up a club and dealt deceased a heavy blow on the side of the head. The lick was heard by persons in the pool room and in the saloon. Although deceased had his hand in his pocket at the time he was struck, no weapon was found on his person, nor on the ground near him. The only pistol that deceased ever had was one that he had borrowed from defendant some days before, and it was found in a small box behind the lunch counter after this trouble. Defendant hurriedly left the scene of the difficulty, and made his escape that night; but in passing an acquaintance on the road he said that he had killed a God damn son of a bitch, but that he had to do it. Deputy Sheriff Green testified that he hunted for defendant a month or two before he found him; that defendant finally came to town and gave bond. The evidence further tended to show that the deceased enjoyed a good reputation as a law-abiding man, but that the reputation of defendant and his brother, George, was bad. From the effects of this blow on the head, deceased soon became unconscious. He lingered from Saturday night till Monday morning, when he died.

On behalf of the defendant the evidence tended to show that he was 19 years old, and deceased 31, and there was considerable difference in their weight. That he and deceased were good friends, and only had one difficulty, and that was some two weeks before at a charivari, when deceased interfered and prevented defendant from fighting a son of M. Moore. That defendant had loaned his pistol to deceased some days before, and saw deceased with his pistol in his hand about one hour before the difficulty, when deceased was aiding the town marshal in taking two drunken men to the city jail. That, when defendant came into the...