The State v. Gleason
| Decision Date | 24 February 1903 |
| Citation | 72 S.W. 676,172 Mo. 259 |
| Parties | THE STATE v. GLEASON, Appellant |
| Court | Missouri Supreme Court |
Appeal from Dent Circuit Court. -- Hon. L. B. Woodside, Judge.
Affirmed.
J. J Cope, Wm. P. Elmer and L. Judson for appellant.
(1) In the conclusion of the indictment is omitted the "manner and form" of the killing. The conclusion is just as essential as any other part of the indictment, and a form was prescribed by this court in the Rector case, which has not been followed herein. Nothing is taken by intendment. State v. Rector, 126 Mo. 340; State v Meyer, 99 Mo. 107; Kelly's Crim. Law (2 Ed.), secs 474 and 503; State v. Pemberton, 30 Mo. 376; State v. Furgerson, 162 Mo. 675; State v. Hagan, 164 Mo. 658; State v. Brown, 168 Mo. 454. (2) The court erred in refusing instructions 2 and 3 requested by defendant. Taking the whole evidence there is nothing but fourth degree manslaughter in the case. When deceased slapped defendant in the face or struck him with the dish, this was a provocation that would reduce the killing to manslaughter, regardless of the self-defense proposition. The presumption of murder in the second degree from an intentional killing is rebutted by the State's evidence. State v. Garrison, 147 Mo. 548; State v. Baker, 146 Mo. 379. (3) The court erred in refusing instruction 1 requested by defendant. In instruction 4 for the State the court instructs on the theory that defendant, in calling deceased a liar, may have provoked the difficulty, and caused Nelson to assault him in order that defendant might have an opportunity of killing deceased. Therefore, if on the contrary defendant called deceased a liar merely to dispute his word and had no intention of provoking the difficulty, his right of self-defense could not be lessened or effected, and the killing at most, was but manslaughter. (4) Juror Asher's conduct was reprehensible, and showed an utter disregard of defendant's rights, or lack of comprehension of the gravity of the charge. (5) The acts and conversations of John A. Eaves and H. A. Blackwell, with the jury, constitute reversible error. They had no right to speak to the jury about pistols and the sheriff, in taking the jury to shoot the pistol in question, was prejudicial to defendant. State v. Orrick, 190 Mo. 124; State v. Stifel, 106 Mo. 134; State v. Howland, 119 Mo. 420; State v. Sansone, 116 Mo. 1.
Edward C. Crow, Attorney-General, Sam B. Jeffries, Assistant Attorney-General, and Jerry M. Jeffries for the State.
(1) The indictment in every way charges the crime of murder in the first degree. Acts which make a felonious assault are set out, the striking and wounding are alleged, and it seems in every way sufficient to properly inform defendant of the charge against him. State v. Patterson, 73 Mo. 695; Shay v. People, 4 Perkins' Criminal Cases 353. (2) The evidence in support of the motion for a new trial does not prove that the sheriff made public the deliberations of the jury after they retired to consider of their verdict, nor that he knew what their deliberations were, or that the verdict was affected thereby. The evidence in support of the motion for a new trial does not prove that "John Evans who was not sworn to take charge of the jury was permitted to and did accompany the jury during their deliberations of their verdict and commingled with them and carried on a conversation with them with or without order of court," much less that defendant was prejudiced by such actions. There is nothing to show that juror J. K. Asher was prejudiced against defendant or in any manner exhibited ill will against him during the trial. The evidence fails to prove such allegation, but on the other hand proves the contrary. The evidence does not show that jurors J. K. Asher, R. E. Maledy and W. T. Horner, or any of them, had formed and expressed an opinion of defendant's guilt prior to their or his examination on "voir dire." The burden is on defendant to establish the truth of his allegation that a juryman before being impaneled had expressed an opinion as to his guilt. State v. Brooks, 92 Mo. 542; State v. Cook, 84 Mo. 40. Such questions are to be determined by the trial court, and that finding will not be disturbed, unless it is shown to be clearly unwarranted. State v. Brooks, supra; State v. Noland, 111 Mo. 473. Where evidence pro and con is introduced upon the question whether a juror was prejudiced, the finding of the trial court is conclusive. State v. Dusenberry, 112 Mo. 277; State v. Williamson, 106 Mo. 162. It is no ground for objection to a juror that he has formed an opinion from rumor or newspaper reports. State v. Williamson, 106 Mo. 162; State v. Brown, 71 Mo. 454.
At the April term, 1899, of the circuit court of Dent county, the grand jury of that county preferred the following indictment for murder against the defendant, John Gleason.
The defendant was duly arraigned and entered his plea of not guilty.
After two mistrials, the prosecuting attorney elected to prosecute for murder in the second degree only, and defendant was again duly arraigned and the cause tried resulting in a conviction of murder in the second degree and assessing his punishment at ten years' in the penitentiary.
From the sentence on that verdict, defendant appeals.
The defendant and Harry Nelson, the deceased, were partners in a restaurant business in the city of Salem at the time of the homicide. The deceased, Nelson, was the cook in the establishment. Prior to December 24, 1898, the evidence discloses no bad feeling between the partners, but on the afternoon of that day it appears there was a rush of business and about 4:30 or 5 o'clock deceased came into the front room of the store and complained that he must have more help in the dining room and kitchen, saying that he and his boy Roy Nelson, couldn't do all the work, and that defendant was sitting there smoking his pipe and doing nothing. Another assistant, Rouse, was sent to help him and deceased returned to the kitchen and dining room to serve the guests who were complaining of the delay.
In a short time, only a few minutes, defendant came to the dining room and accosting deceased inquired what he would take for his interest in the business and get out. Deceased replied, "Fifty dollars and his wages." Defendant refused to give that sum and deceased again made the charge that defendant was not doing his part, to which defendant replied, deceased was a liar. Defendant then returned to the front room, and placed a revolver in his pocket, he says in his pant's pocket, others say he had it in his right-hand hip pocket. Thus armed he returned to the dining room where deceased was just serving some oysters to a guest. Defendant approached deceased where he was standing near the table and at this point the evidence becomes very conflicting and contradictory. On the part of the State the testimony tends strongly to prove that defendant came into the dining room with his pistol in his hand and approached deceased, coming within five or six feet of him, and that deceased seeing the revolver struck at it as if to ward it off, and thereupon defendant shot him, in the breast, giving him a mortal wound from which he instantly fell to the floor and expired within thirty minutes; that deceased had made no assault on defendant prior to the presenting of the revolver at him and then only to avert the shot.
On the part of defendant the evidence tended to show that the wordy altercation was renewed, in which each gave the other the lie, and that deceased slapped or struck defendant with his hand or fist, and then reached for a plate on the table. Some of the witnesses say he threw the plate and...
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