State v. Zorn

• Decision Date: 05 March 1907
• Citation: 202 Mo. 12,100 S.W. 591
• Parties: STATE v. ZORN.
• Court: Missouri Supreme Court

100 S.W. 591

202 Mo. 12

STATE v. ZORN.

Supreme Court of Missouri, Division No. 2.

March 5, 1907.

1. HOMICIDE—DYING DECLARATION—ADMISSIBILITY OF EVIDENCE.

In a murder trial, it was not error to exclude testimony as to what decedent said about the time he made the dying declaration, as to whether he wanted a minister to pray for him, the testimony not having a tendency to show that he was an infidel, and hence could not affect the weight to be given the declaration.

2. CRIMINAL LAW—APPEAL—RESERVATION OF GROUND OF REVIEW.

If it was competent to show in a murder trial that decedent was an infidel, as lessening the weight to be attached to his dying declaration, to preserve the action of the court in refusing to hear testimony on that subject, defendant should have had the record disclose the testimony along the line he proposed to introduce, and, having failed to do so, there was nothing for the Supreme Court to review on that subject.

3. HOMICIDE—EVIDENCE—DECEDENT'S CHARACTER.

It is only when a showing of self-defense is made in a murder trial that evidence of the character and reputation of decedent for rashness, viciousness, and turbulence becomes material.

4. SAME — DYING DECLARATION — QUESTIONS FOR COURT AND JURY.

Though, in a murder trial, it was for the jury to determine the weight to which decedent's dying declaration was entitled, the question whether it was made under a sense of impending death was solely for the court, and hence the court erred in leaving that question to the jury, it appearing that the court did not undertake nor intend to pass upon it.

5. SAME—APPEAL—REVIEW.

It was the duty of the Supreme Court on appeal in a murder trial to review the action of the trial court in admitting decedent's dying declaration, to determine the sufficiency of the foundation laid for its submission, considering all the testimony offered by both the state and defendant: but it could not review testimony before the trial court, which the record discloses was not considered by it in admitting the declaration.

6. SAME—TRIAL—INSTRUCTION.

In a murder trial, an instruction that if defendant intentionally shot decedent with a pistol in a vital part of the body, and that the pistol used was a deadly weapon, and that decedent died from the effects within one year, the law presumes defendant intended the natural consequence of his act, and from the use of the deadly weapon the existence of malice may be inferred, and in the absence of a showing of deliberation the defendant would be guilty of murder in the second degree, etc., fully recognized the principle that an intentional homicide by the use of the deadly weapon on a vital part of the body is presumed to be murder in the second degree, in the absence of proof to the contrary.

7. CRIMINAL LAW—APPEAL—REVIEW—ESTOPPEL TO OBJECT TO INSTRUCTION.

Defendant, in a murder trial, could not complain that an instruction ignored the theory of provocation which might reduce the killing from murder in the second degree to manslaughter in the fourth degree, where he had objected to the court instructing on manslaughter in the fourth degree, and where, under the evidence, the offense was either murder in the first or second degree, or justifiable homicide.

8. SAME—TRIAL—INSTRUCTIONS—CONFORMITY TO EVIDENCE—IMPERFECT SELF-DEFENSE.

In instructing in a murder trial, the court did not err in ignoring the theory of imperfect self-defense, where the evidence showed that the killing was either murder or perfectly justified.

9. HOMICIDE—DYING DECLARATION—ADMISSIBILITY OF EVIDENCE.

In laying a foundation for the admission of a dying declaration in a murder trial, it was not reversible error to exclude evidence offered by defendant, tending to show that decedent objected to sending for a minister or

his relatives about the time he made the declaration.

10. CRIMINAL LAW—APPEAL—HARMLESS ERROR —EVIDENCE.

In a murder trial, the erroneous admission of testimony is not reversible error, where the substance thereof is given by another witness without objection.

11. HOMICIDE—INSTRUCTION—REFUSAL.

Where a landlord killed a tenant on leased premises, claiming self-defense, it was not error, on a trial for murder, to refuse his requested instruction that a mere trespass upon the leased premises would not justify an assault by the tenant, and if such assault was made the landlord could defend himself to the extent of killing the tenant, where the court instructed fully on the law of self-defense, and did not limit the landlord's right by reason of the homicide occurring upon the leased premises.

12. CRIMINAL LAW—APPEAL — RESERVATION OF OBJECTION.

Where complaints against improper remarks of a prosecuting attorney in a criminal trial were not preserved in the bill of exceptions by timely objection or exception to the remarks, they will not be reviewed on appeal.

13. SAME—TRIAL—MISCONDUCT OF COUNSEL.

The Supreme Court will reverse conviction in a criminal trial where the prosecuting attorney has indulged in a line of argument making it apparent that a fair and impartial trial was endangered.

14. HOMICIDE—MURDER—INFORMATION—SUFFICIENCY.

An information charging that defendant "in and upon" decedent feloniously, etc., "did make an assault, and with a certain revolving pistol * * * loaded with gunpowder and leaden bullets." and by defendant in his hands held, "and which said pistol" defendant did "then and there feloniously," etc., "discharge and shoot off," etc., though not grammatical and rhetorical, was sufficient.

Appeal from Criminal Court, Jackson County; Howard Gray, Special Judge.

Louis Zorn was convicted of murder in the second degree, and he appeals. Reversed and remanded.

This cause is brought to this court by appeal on the part of the defendant from a judgment of conviction of murder in the second degree in the criminal court of Jackson county, Mo. The information upon which this judgment is predicated was filed by the prosecuting attorney on the 19th day of December, 1903, in the criminal court of that county, charging the defendant, Louis Zorn, with murder in the first degree, for shooting one Albert Sechrest with a pistol on the 24th day of June of that year. As the correctness of this information is challenged by appellant it is well that it be reproduced here. It was as follows:

"State of Missouri, County of Jackson—ss.:

"In the Criminal Court of Jackson County, Missouri, at Kansas City, Missouri. September Term, A. D. 1903.

"Now comes Roland Hughes, prosecuting attorney for the state of Missouri in and for the body of the county of Jackson, and upon his oath informs the court that Louis Zorn, whose Christian name in full is unknown to said prosecuting attorney, late of the county aforesaid, on the 23d day of June, 1902, at the county of Jackson, state of Missouri, in and upon one Albert Sechrest then and there being, feloniously, willfully, deliberately, premeditatedly, on purpose, and of his malice aforethought did make an assault, and with a certain revolving pistol, which was then and there loaded with gunpowder and leaden bullets, and by him, the said Louis Zorn, in his hands then and there had and held, and which said pistol he, the said Louis Zorn, did then and there feloniously, willfully, deliberately, premeditatedly, on purpose, and of his malice aforethought, discharge and shoot off at, upon and against him, the said Albert Sechrest, and he, the said Louis Zorn, with the leaden bullets aforesaid out of the pistol aforesaid then and there by force of the gunpowder aforesaid, by the said Louis Zorn so shot off and discharged as aforesaid, then and there feloniously, willfully, deliberately, premeditatedly, on purpose, and of his malice aforethought did strike, penetrate, and wound the said Albert Sechrest, in and upon the body of him the said Albert Sechrest, thus and thereby, then and there feloniously, willfully, deliberately, premeditatedly, on purpose, and of his malice aforethought, giving to him, the said Albert Sechrest, with the leaden bullets aforesaid, so as aforesaid discharged and shot off out of the pistol aforesaid by the said Louis Zorn, one mortal wound, of which said mortal wound the said Albert Sechrest from the said 23d day of June in the year aforesaid until the 24th day of June in the year aforesaid did languish, and languishing did live, on which said 24th day of June in the year aforesaid the said Albert Sechrest at the county of Jackson and state of Missouri, of the mortal wound aforesaid, died; and so the prosecuting attorney aforesaid, upon his official oath aforesaid, doth say that the said Louis Zorn him the said Albert Sechrest at the county and state aforesaid, in the manner and by the means aforesaid, feloniously, willfully, deliberately, premeditatedly, on purpose and of his malice aforethought did kill and murder, against the peace and dignity of the state.

"Roland Hughes, Prosecuting Attorney.

"State of Missouri, County of Jackson—ss.:

"Roland Hughes, Prosecuting attorney of Jackson county, Mo., being first duly sworn, on his oath says that the facts set forth in the above and foregoing information are true according to the best of his information and belief.

                                      Roland Hughes
                

"Subscribed and sworn to before me this 12th day of December, 1903.

                           "Charles V. Renick
                       "Clerk of the Criminal Court
                             "By Wm. L. McClanahan
                                        "Deputy Clerk."
                

The record discloses that there have been three trials of this cause. In the first two trials the jury failed to agree, and on the third trial, at which the Hon. Howard Gray presided as special judge, and which was begun on the 11th of July, 1905, the jury returned a verdict finding the defendant guilty of murder in the second degree, and fixed his punishment at 15 years in the State Penitentiary.

We deem it unnecessary to burden this opinion with anything like a detailed statement of all the witnesses...