The State v. Hart
| Citation | 274 S.W. 385,309 Mo. 77 |
| Decision Date | 05 June 1925 |
| Docket Number | 26155 |
| Parties | THE STATE v. CHARLES HART, Appellant |
| Court | United States State Supreme Court of Missouri |
Appeal from Buchanan Circuit Court; Hon. Thomas B. Allen Judge.
Affirmed.
John E. Heffley, Stephen K. Owen and Earl Borchers for appellant.
(1) Instruction numbered five is misleading, confusing, and is a comment on instructions one, two and three, and is nothing more than a statement of an abstract proposition of law. The court should not give instructions containing merely an abstract proposition of law. Wein v. State, 14 Mo 124; State v. Holmes, 239 Mo. 465. Mere dissertation on the law, no matter how correct as a general essay, nor how well supported by authorities, may not explain to the jury the law arising on the evidence and should not be given. State v. Else, 201 Mo. 561; State v Little, 228 Mo. 273; State v. Price, 115 Mo.App. 656. (2) Instruction numbered six fails to properly define manslaughter, and fails to define "heat of passion" used in instruction ten. Among other definitions in this instruction the court defines manslaughter as follows: "Manslaughter for the purpose of this trial is the wilful killing of a human being without deliberation and without malice aforethought," and in instruction numbered ten the court uses the phrase "in the heat of passion." Manslaughter is a crime recognized by common law, and the phrase "in the heat of passion" is one of the elements of the same when employed in instructions descriptive of the facts in its technical sense. State v. Strong, 153 Mo. 548; State v. Andrew, 76 Mo. 101; State v. Forsyth, 89 Mo. 667; State v. Hickman, 95 Mo. 330; State v. Findley, 150 S.W. 1054; State v. Skaggs, 159 Mo. 581; State v. Cariou, 266 Mo. 82. (3) In instruction numbered seven, the court not only instructed as to what constituted murder in the first degree, but commented upon the evidence. There are two kinds of presumptions, presumptions of law, and presumptions of facts. The jury should be allowed to try the facts. 3 Greenleaf on Evidence (16 Ed.) sec. 31; State v. Swarens, 241 S.W. 934; Sec. 4005, R. S. 1919. (4) The failure to sustain defendant's demurrer at the close of the case on account of a variance between the pleading and the proof, and the failure after the overruling of the demurrer to properly instruct the jury on this phase of the case, were errors. The information filed charges defendant with the murder of one John Less, whose real name was John Lesneski, the name of Less being merely an adopted name. Sec. 3907, R. S. 1919, was enacted to cover defects of this kind, and the trial court must make a finding that the defect is not material. As it is the duty of the court to instruct the jury on all he law pertaining to the case, it is the duty of the court to instruct on this point. State v. Neibekier, 184 Mo. 218. The testimony of Frogge is not part of the res gestae, and does not come within the rule of being hearsay testimony, and it is not admissible as a dying declaration. State v. Kellar, 201 Mo. 614; State v. Heindricks, 120 Mo. 674; 24 Cyc. 80; State v. Kyle, 225 S.W. 1012; State v. Parker, 172 Mo. 202; State v. Wilkes, 213 S.W. 120. Neither could it be admitted on the theory that it was a dying declaration as it does not come under any of the rules governing admission of a dying declaration. Lipscomb v. State, 75 Miss. 550.
Robert W. Otto, Attorney-General, and J. Henry Caruthers, Assistant Attorney-General, for respondent.
(1) Whenever on the trial of a felony or misdemeanor there shall appear to be any variance between the statements in the information and the evidence offered in proof in the surname, such variance shall not be deemed grounds for acquittal of the defendant, unless, the court before which the trial was held shall find that such variance is material to the merits of the case, and prejudicial to the defendant. The trial court did not so find. It was plainly shown that John Less and John Lesneski were one and the same individual. Sec. 3907, R. S. 1919; State v. Tracy, 243 S.W. 178. (2) Statements relative to an injury made immediately after receiving such injury are competent evidence as part of the res gestae, hence the testimony given by the police officers that John Less told them immediately after he was shot that Charley Hart, the defendant, shot him, was properly admitted. State v. Baker, 209 Mo. 450.
The defendant appeals from a judgment of the Circuit Court of Buchanan County, following the verdict of the jury wherein he was found guilty of murder in the first degree, and his punishment assessed at imprisonment in the penitentiary for life. He was charged with killing, October 18 or 19, one John Lesneski, known by the name of John Less, a police officer of the city of St. Joseph.
About midnight October 18th, Less and Officer Buxton, motorcycle policeman, rode up to the front of the Elms Hotel at Felix and Third Street, parked their motorcycles, and saw defendant Charles Hart and a man named France get out of a taxicab and enter the Elms Hotel. Buxton knew there was a "pick-up" order out for Hart. Other officers were present about the hotel at the time. After some maneuvering France and Hart were arrested. A patrol wagon was summoned and drove up to the front of the hotel. France and Hart, in the custody of the officers, passed through a string of vehicles next to the curb to the patrol wagon. France got into it. Hart walked around the wagon, threw down his overcoat and started to run. Officers Less, Buxton and others gave chase. He ran a short distance to Felix Street, when Less overtook him and, on the point of seizing him exclaimed, "I have got him Buck." Hart turned, pulled a revolver out of his shirt front and fired at Less. Less stumbled to the ground and Hart continued his flight with the officers in chase firing at him. The incident was witnessed by officers Buxton, Idlett, Crane and others. All of them swore they saw Hart draw a revolver from the front of his clothes, saw the flash of the weapon, and saw Less fall. Less was within a very few feet of Hart at the time. Hart had been searched when they arrested him in the hotel, but no weapons was found on him. Less was taken to the hospital and died October 22nd. An autopsy discovered a steel-jacketed 45-calibre bullet. He was shot in the region of the hip; the intestines were perforated, and the bullet lodged in the muscles of the back. He died from the effect of the wound.
Hart was arrested October 22nd, at a farm owned by a man named Huff; he was in bed when the officers found him, and wounded in the leg. He had a revolver in his hand under the cover. The officers seized him by the wrist and took the weapon from him. The revolver was fully loaded; did not appear to have been fired recently; was rusty, and appeared not to have been cleaned for two or three months.
The defendant offered no evidence at the trial and the jury returned a verdict of guilty, as stated.
"The court instructs you that before you can find the defendant guilty of any crime you must find and believe from the evidence that defendant Hart shot and killed John Less."
It is objected that this instruction is misleading and confusing, and states nothing more than an abstract proposition of law. Certainly it does not state an abstract proposition, because it requires a finding of a specific fact by the jury, without which finding the defendant could not be guilty. It is not confusing; it does not direct a verdict, but it states one fact which must be found before a verdict of guilty could be returned. Other instructions sufficiently point out to the jury what other facts it was necessary to find in order to return a verdict of guilty.
It will be noticed that this part of the instruction does not attempt to give a general definition of manslaughter, but manslaughter for the purposes of this trial. It is not suggested that the court ought to have instructed on self-defense. Under the evidence, there being no self-defense, manslaughter would be the killing of Less under circumstances which would not constitute murder in the first or second degree, and that is what the instruction declares.
It is argued that heat of passion is an element of manslaughter, and that "heat of passion" should be defined. Another instruction, No. 10, authorized the jury to find the defendant guilty of manslaughter if he killed Less in the heat of passion.
When the former statute defined several grades of manslaughter it was held necessary and proper to define "heat of passion," because manslaughter in the fourth degree was defined to be a killing which would be manslaughter at common law, and at common law "heat of passion" was a necessary element in the crime of manslaughter. But the statute was amended in 1919, and degrees of manslaugher were abolished. Section 3236, Revised Statutes 1919, now defines manslaughter as every killing of a human being by the act, procurement or culpable negligence of another, not declared to be murder or excusable or justifiable homicide.
That definition covers cases where homicide occurs in the heat of passion, and many cases where it does not. This court explained that matter in case of State v. Gore, 237 S.W. 993, l. c. 996-997.
The instruction therefore is entirely correct.
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