The State v. Carey

• Decision Date: 20 March 1926
• Parties: THE STATE v. FRANK CAREY and CHESTER KERR, Appellants
• Court: Missouri Supreme Court

282 S.W. 22

313 Mo. 436

THE STATE v. FRANK CAREY and CHESTER KERR, Appellants

Supreme Court of Missouri

March 20, 1926

Appeal from Henry Circuit Court; Hon. C. A. Calvird, Judge.

Reversed and remanded.

Irwin & Dunn and T. S. Mosby for appellants.

(1) The point having been saved by proper exception, it was error for the court to fail to instruct on all the law of the case whether requested to do so or not. R. S. 1919, sec. 4025; State v. Conway, 241 Mo. 271; State v George, 214 Mo. 262; State v. Kilgore, 79 Mo 546; State v. Branstetter, 65 Mo. 149; State v Vinso, 171 Mo. 578; State v. Stonum, 62 Mo. 596; State v. Taylor, 118 Mo. 152; State v. Jones, 61 Mo. 232; State v. Douglas, 258 Mo. 289; State v. Gurnee, 309 Mo. 6; State v. Turlington, 102 Mo. 642; State v. Douglas, 81 Mo. 231. (2) The court's attention having been called at the time to its failure to instruct upon manslaughter, the point may now be successfully urged on appeal. State v. Chenault, 212 Mo. 132; State v. Weatherman, 202 Mo. 6; State v. James, 216 Mo. 394; State v. West, 202 Mo. 128; State v. Espenschied, 212 Mo. 215; State v. Golsbery, 215 Mo. 48; State v. Conway, 241 Mo. 271; State v. Todd, 194 Mo. 393; State v. McKenzie, 178 Mo. 423; State v. Weakly, 178 Mo. 423; State v. Darling, 199 Mo. 170. (3) The passion which will reduce homicide to manslaughter is an excited state of mind produced by some lawful provocation, such as a blow or an assault upon the person. State v. Todd, 194 Mo. 377; State v. Darling, 199 Mo. 168; State v. Sebastian, 215 Mo. 58; State v. Curtis, 70 Mo. 594; State v. Gassert, 65 Mo. 352; State v. Stewart, 278 Mo. 177; State v. Conley, 255 Mo. 185; State v. Bates, 239 Mo. 507; State v. Grugin, 147 Mo. 39; State v. Heath, 221 Mo. 565; State v. Gee, 85 Mo. 647; 1 Wharton, Crim. Law (10 Ed.) sec. 480. There can be no question, that had Harry Knight been on trial in this case he would have been entitled to a manslaughter instruction; and the point is here made that the element of manslaughter being in the case, these defendants were entitled to an instruction on that point, the status of an accessory being identical with the status of the principal. (4) Mere presence at the scene of the homicide would not render the defendants liable as accessories or otherwise, nor would mere consent. State v. Crittenden, 191 Mo. 17; State v. Cox, 65 Mo. 29; State v. Orrick, 106 Mo. 111. (5) In a case depending mainly on circumstantial evidence, the want of motive is an important consideration bearing upon the probability of guilt. State v. Heusack, 189 Mo. 295; State v. Francis, 199 Mo. 671; State v. Barrington, 198 Mo. 23.

North T. Gentry, Attorney-General, and Harry L. Thomas, Special Assistant Attorney-General, for respondent.

(1) The evidence was sufficient, there being direct and positive evidence that both appellants were present and active participants in the murder. (2) If an instruction on manslaughter was necessary and was required by the evidence, the error in failing to so instruct is properly saved for review. State v. Burrell, 298 Mo. 672; State v. Knight, 278 S.W. 1036. (3) No manslaughter instruction was required by the evidence. Where there is evidence to raise a presumption of malice and to permit evidence of provocation to be disregarded, no such instruction is required. State v. Stewart, 278 Mo. 177. Further there was no personal violence toward the defendants. State v. Delbono, 268 S.W. 61. (4) The measure of an accessory's guilt is not an issue in this case. Under our statute, the defendants were principals and not accessories. R. S. 1919, sec. 3687. (5) Appellants were not only present, but were shown by the evidence and found by the verdict to be actual participants. Where one is present by preconcert, he may be responsible for the criminal act. State v. Crabb, 121 Mo. 554. (6) There was no request for an instruction or assignment in the motion for a new trial relating to an instruction upon the lack of motive. No instruction was necessary, therefore, and in its absence the question of motive was one of fact passed upon by the jury.

OPINION

Blair, J.

Appellants were convicted of murder in the second degree for the killing of one George McCormick. They were sentenced upon the verdict to imprisonment in the penitentiary for fifteen years and have appealed.

This is a companion case to State v. Harry Knight, 312 Mo. 411, 278 S.W. 1036. The homicide occurred at Holden, in Johnson County, on June 23, 1923. The information charged murder in the first degree and alleged that Harry Knight killed McCormick by striking him upon the head and body with a pistol, and that Guy Knight and appellants were present aiding, abetting, assisting, etc., said Harry Knight in the commission of said homicide. A change of venue was granted to Henry County. A severance was asked and awarded, and appellants were tried together, but separately from the Knights.

The facts are quite similar to those stated by Judge Railey in the case of State v. Harry Knight, supra. George McCormick and his family and Ben Knight and his family were neighbors living upon adjoining lots or tracts in Holden. So far as shown by the record, the family of George McCormick, to whom we will refer as the deceased, consisted of himself, his wife Ruth, his son Lowell and his daughters Odessa and Elsie. Ben Knight had a wife, Mollie, and at least three sons and a daughter. The sons were Harry, Guy, Ben, Jr., and the daughter was Eunice. It is not entirely clear that Guy and Ben, Jr., lived at home, but they apparently did. Harry lived in Kansas City, Missouri. He had formerly lived at Holden.

Both families seemed to have engaged, to some extent, in agricultural pursuits, and Ben Knight, or his son Guy, owned some hogs whose frequent depredations had interfered with the garden of the deceased. The hogs had escaped several times and had wrought havoc in the McCormick garden. Deceased had caused the death of at least two of the hogs which he found thus trespassing. The killing of these hogs caused trouble and threats of personal violence. It appears that deceased was not satisfied with killing the hogs, for he caused the arrest of Guy Knight because he failed to dispose of the carcass or carcasses to the satisfaction of deceased.

Such was the status of affairs on June 23, 1923. On that day Guy Knight was in Kansas City. It seems that he had some checks outstanding and it was necessary for him to raise money to meet them. He also had several criminal charges pending against him requiring that he give bail to retain his liberty. Guy Knight claimed that he went to Kansas City to secure the aid of his brother Harry in these matters.

The State's theory appears to be that Guy went to Kansas City to get Harry to assist in handling in a satisfactory manner the difficulty in which he and his father were involved with the deceased. Some color is furnished to this theory, by reason of the admission of Guy himself that he and the deceased had an argument and almost a physical encounter at the division fence on Thursday before the occurrence of the homicide on Saturday evening.

At any rate, Harry and Guy Knight were preparing to drive from Kansas City to Holden shortly after noon on Saturday. They saw the appellants at that time and agreed to take them to Holden with them. They drove rapidly. Harry was at the wheel, according to appellant's witnesses. There is some testimony that appellant Carey, who disclaimed ability to drive an automobile, was at least driving part of the time and bought and paid for gasoline en route.

In Kingsville, about six miles west of Holden, the automobile party encountered Ben Knight, who had ridden there on horseback and who had spent several hours in that village. They took Ben Knight in the automobile with them, and the party drove rapidly toward Holden and arrived in Holden about six o'clock. The automobile was driven a little past deceased's house and was stopped in front of his lot. There is no substantial dispute about the foregoing facts. From that point there is a wide divergence in the testimony.

The evidence offered by the State tended to prove that Harry Knight got out of the automobile at that point and called to the deceased, who was on the back porch of his house. Deceased came out at once and walked to the sidewalk. Harry asked him something about the killing of the hogs and made a move as though reaching for his pistol. Deceased promptly knocked Harry down. Guy then got out of the automobile and took up the fight with the deceased in aid of his brother Harry. Appellants then got out of the automobile and went to the assistance of Harry and Guy Knight. The combatants struggled around the yard and into the edge of deceased's potato patch. One T. D. Smith, who was present at the deceased's home when he was first called out by Harry Knight, picked up a poker and attempted to intervene, when Harry Knight threatened him with his pistol. Smith retired to the porch and picked up a hammer and again sought to come to the aid of deceased. He was again threatened by Harry Knight. In the meantime deceased's son Lowell had hurried home from a neighbor's. By this time deceased's assailants, including appellants, had succeeded in tripping him and in getting him down and were kicking and beating him. Harry Knight then struck deceased over the head with his pistol. This was the fatal blow. Lowell McCormick seized his father's shotgun and inserted the only shell he could find and went to the door just as Ben Knight started from the automobile with a Stilson wrench in his hands, saying in substance, "If you cannot finish him, I will." As Ben Knight approached deceased lying on or near the sidewalk, Lowell fired at him and struck his body near the hips....