The State v. Brown
| Decision Date | 31 January 1894 |
| Parties | The State v. Brown, Appellant |
| Court | Missouri Supreme Court |
Appeal from Cole Circuit Court. -- Hon. D. W. Shackleford, Judge.
On the third day of August, 1892, Francis Mackin was foreman in the tannery department of the Strauss Saddlery Co., in the Missouri penitentiary, and had charge of that department. Defendant was a convict who had been in the penitentiary for some years and was under the charge and orders of Mackin.
On that day defendant killed Mackin by stabbing him to death with a shoe knife. From defendant's story, angry feelings had existed between Mackin and himself in regard to some sugar that defendant, it seems, had "sent out for," contrary to rules. And some trouble, so defendant states, had existed between the two respecting some information given to Capt. Bradbury about the sugar incident, and also about what Mackin told Donahoe, the keeper, of defendant's refusing to quit work when ordered to do so. This bad blood, as defendant testified, had existed between defendant and Mackin ever since the March or April prior to the morning of the homicide. On the previous afternoon, Starns, a convict, heard a conversation between Mackin and defendant, in which the former told the latter that "if he didn't do something, that he would have to send him up," which phrase, in penitentiary parlance, means to have him flogged. To which defendant replied, "if he did, he would kill him before to-morrow night." Just after this, Mackin went away, whereupon defendant asked Starns if he would not grind a knife for him, but without saying for what purpose he wished it; which Starns refused to do, and advised defendant to let Mackin alone.
Again on that afternoon, defendant repeated the threat he had previously made. Donahoe, the keeper in the factory testified that on the morning of the next day, Mackin reported defendant to him, of having refused to obey his orders. Thereupon Donahoe called defendant up to his stand and asked him why he talked so to the foreman; but he denied it and said he did not do any thing of the kind. Owing to the defendant's continued disobedience to Mackin's orders, it became necessary for the latter to report defendant the second time on that morning, and it was after the first report that defendant made a threat to Mackin that he would "straighten matters with him," and this threat was also reported to Donahoe. In ten or fifteen minutes after this threat, defendant being ordered to report for punishment, did the act charged in the indictment.
Melton a guard in the shop where the homicide was perpetrated testified that on that fatal morning, Mackin was at his desk with one foot on the foot-board and the other on the ground leaning over on the table, when witness observed defendant coming down the aisle some fifty feet away, when defendant held up his hand as is customary with prisoners, to show they have nothing in their hands. Defendant continued to move down the aisle till he got about twenty-five feet away, when he went in behind a stack of leather several feet high, and right in behind the foreman and almost instantly Melton heard Mackin halloo "Oh!" two or three times, and looking up he saw defendant cutting him with a knife. Mackin started to run, defendant following him closely and cutting him as he ran, until Mackin ran in behind Melton's chair, when Melton pushed defendant back with his stick, and had his knife taken away from him by Cooper. Melton did not see defendant obtain the knife, but Cooper, a convict did, and he stated he saw defendant pick it up from his bench.
In addition to his other testimony already related, defendant testified that on that morning Mackin had reported him to Donahoe, the keeper, for a violation of rules and that in passing by to go to Donahoe, defendant says that Mackin told him "if he wanted to get two years for him," (that is to do him such violence, as would result in defendant's getting a term of two years in the penitentiary), "it was a good time for him to do it." Defendant further testified that he subsequently went downstairs, where Mackin was at work, in order to get his cap, and go to Donahoe to be "dressed off," as Donahoe promised him he should be, this idea of getting two years for Mackin was ringing in his ears, and when he came near enough to Mackin to see him, he saw a smile playing upon his face, which so enraged him that he seized the knife lying on the barrel and continued his journey toward the deceased until he reached him, and that then, he began the assault which resulted in the death of Mackin. Defendant also testified: "I cut him, but I did not have no intention of killing him; if he hadn't told me he wanted me to get two years for him, I never would have cut him at all."
Mackin received at least seven distinct wounds, one very severe one in the back, and several others on back, breast, shoulders and armpits, from the effect of which he died in a few hours. On this evidence, and much more of the same sort, defendant was found guilty of murder in the first degree, and from the judgment and sentence pronounced on the verdict, he has appealed to this court.
There were no exceptions saved to the giving or refusing of instructions, but a stipulation has been signed by the respective counsel and has been filed in this court as follows: "That the state's instructions hereto attached, being duly certified under the hand and seal of the clerk of the Cole circuit court shall be taken and considered on the hearing of the appeal, in this cause the same as if they were duly inserted and contained in the transcript of the bill of exceptions on file, with objections and exceptions of the defendant properly saved and preserved both to the action of the court in giving the instructions given in the case, and to its action in refusing the one asked by defendant."
The instructions on behalf of the state thus preserved, are those usually given and embrace murder in the first and second degrees. Other points arising during the trial of the cause will be noticed and the particulars on which they are founded set forth hereafter.
Affirmed.
Edwin Silver and A. M. Hough for appellant.
(1) The court erred in overruling defendant's plea in abatement filed February 20, 1893. The indictment was authorized by a special statute and should have contained the necessary averments as to defendant's convict status to bring the prosecution within the statute and to authorize it notwithstanding he was then serving a sentence in the penitentiary as such convict. R. S. 1889, sec. 3963; State v. Johnson, 93 Mo. 322; State v. Adcock, 65 Mo. 590. (2) The defendant's motion to quash the panel of forty should have been sustained. The facts recited in the motion were supported by affidavit and were not controverted by the state and showed that the defendant was deprived of an impartial jury as guaranteed him by the constitution. The court also erred in accepting on the panel of forty Mr. Grolts, whose examination on the voir dire showed he was a member of the grand jury which found the indictment against the defendant. The court also erred in overruling the motion to quash the panel of forty because the defendant being a negro was denied the right to have any members of his own race to sit on his case. Federal Constitution, fourteenth amendment, sec. 1. (3) The trial court committed error in refusing to instruct the jury as asked by defendant to the effect that if it was defendant's intention only to do the deceased great bodily harm and not to kill him the offense was murder of the second degree. State v. O'Hara, 92 Mo. 59; Wharton's Crim. Law [8 Ed.], sec. 388. The defendant was a competent witness to testify to his own intention in striking the blows and had a right to the instruction founded on his own evidence. State v. Banks, 73 Mo. 592; Nichols v. Winfrey, 79 Mo. 546; State v. Palmer, 83 Mo. 572; State v. Partlow, 90 Mo. 626; State v. Williams, 95 Mo. 250; State v. Saunders, 106 Mo. 197. (4) The court should have instructed the jury on the crime of manslaughter in the third degree under Revised Statutes, 1889, section 3471. (5) The indictment did not sufficiently charge that the wounds themselves were felonious, premeditated and deliberate.
R. F. Walker, Attorney General, F. E. Luckett, Prosecuting Attorney, and J. W. Zevely for the state.
(1) No error was committed by the trial court in sustaining the motion made by the prosecuting attorney to strike out defendant's plea in abatement. The plea in abatement failed to state facts sufficient to establish a bar or defense to the charge in the indictment. (2) The court very properly overruled defendant's motion to quash the panel of jurors; the fact that the jurors were related to each other, or that they resided in any particular section of the county, was certainly no reason why they should be adjudged incompetent to try this cause. The duty of the court in the selection of a jury is to secure for the defendant a panel who will give him a fair and impartial trial, according to the law and the evidence. State v. Cunningham, 100 Mo. 242; State v. Robinson, 117 Mo. 649. (3) The instructions in this case (given and refused) were not preserved in the bill of exceptions, but have been filed by stipulation in order that the court may, if it so desires consider them. It has been repeatedly held in this state that to entitle them to consideration or review, they must be preserved in the bill of exceptions, and that they can only be brought to the attention of the court by so preserving them, together with the exceptions of appellant, to the action of the court, in either giving or refusing them. It is insisted by the respondent that the record in this case fails to...
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