The State v. Herring

• Citation: 188 S.W. 169,268 Mo. 514
• Parties: THE STATE v. NORMAN HERRING and J. F. BALDWIN, Appellants
• Decision Date: 05 July 1916
• Court: Missouri Supreme Court

188 S.W. 169

268 Mo. 514

THE STATE v. NORMAN HERRING and J. F. BALDWIN, Appellants

Supreme Court of Missouri, Second Division

July 5, 1916

Appeal from Buchanan Criminal Court. -- Hon. Thomas F. Ryan, Judge.

Affirmed.

Elliott Spalding and Stephen K. Owen for appellants.

(1) It was prejudicial error to refuse the challenge for cause on the part of the defendants of venireman Rogers. Sec. 5220. R S. 1909. This man not only had an opinion, but had expressed it, and that opinion was not only an opinion, but it amounted to a definite determination of the guilt of the defendants. (2) No crime was committed, proven or shown. The testimony not only fails to prove any crime, but strongly disproves any crime or intention to commit even an infraction of the asylum rule. The State's evidence, apart from any proof adduced on the part of the defense, disproves any guilt. (3) The court erred in permitting to testify on behalf of the State and over the objections of the defendant three insane patients, inmates in the asylum for the insane at the time of the homicide, and at the time of their production as witnesses, and admittedly "adjudged" insane. Sec 6362, R. S. 1909. These men having been adjudged insane by courts of competent jurisdiction, they were insane and of unsound mind, and the trial court had no power to inquire into their competency at the time of their production. The adjudication of these men as to their being insane, together with their confinement in the asylum fixes their status, and brings them within the statute and fixes their incompetency and no collateral hearing or attempt to qualify them could make them competent. The binding force of an oath is based upon two things: First: The religious faith and beliefs of the witness, and his belief in God, with a proper appreciation of solemnity of calling upon Him to witness the truthfulness of the testimony, and the fear of punishment and future retribution if such testimony be false. Sec. 6349, R. S. 1909; Sec. 6353, R. S. 1909. Second: The fear of temporal punishment and the penalties for swearing falsely or committing the crime of perjury. Secs. 4344 and 4345, R. S. 1909. Had these witnesses cunningly devised or insanely conceived some parts of their testimony, which appellants contend a part of these witnesses did, to vent a spleen for a grievance, real or imagined, against one of these defendants, they could not be punished for perjury. The very discussion by the court with these witnesses of the punishment to be meted out by the law made the matter worse for these defendants, for it brought to the attention of the witnesses their condition; and if they had mind sufficient to make them desirable witnesses for the State, then they had mind enough to know of their immunity from punishment, however false their testimony might be. The decisions in State v. Whitsett, 232 Mo. 527, and State v. Vaughn, 223 Mo. 155, are not squarely in point. (4) The instruction is deficient, misguiding and wholly silent as to defendants' rights and as to those matters that temper the law to accord with human weakness when sudden passion on provocation arises, and is altogether prejudicial to these defendants, and totally oblivious to their rights. State v. Watson, 95 Mo. 416; State v. Umfriend, 76 Mo. 407; State v. Young, 99 Mo. 666; State v. Speyer, 207 Mo. 556; State v. Lewis, 118 Mo. 79; State v. Davidson, 95 Mo. 155; State v. Ellis, 74 Mo. 215; State v. Weakley, 178 Mo. 422; State v. Jones, 79 Mo. 444; State v. Elsey, 201 Mo. 571. This instruction is faulty in that it does not require the jury to find that the defendant intentionally killed deceased. State v. Hearney, 177 S.W. 305; State v. Umfriend, 76 Mo. 407; State v. Sloan, 47 Mo. 614; State v. Edwards, 70 Mo. 482.

John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.

(1) When a jurior on his voir dire examination declares that his opinion is not such as to bias or prejudice his mind, and that his opinion will readily yield to the evidence in the case, he is a competent juror. State v. Church, 199 Mo. 629; State v. Darling, 199 Mo. 196; State v. Sykes, 191 Mo. 75; State v. Sherman, 264 Mo. 379. (2) Upon their voir dire examination the witnesses Fitzpatrick, Murphy and Hoffman, inmates of the hospital, showed that they had sufficient understanding to comprehend the obligations of an oath and were capable of giving a correct account of what they had seen and heard of the difficulty between appellants and the deceased. The competency of these witnesses was a question for the court. State v. Myers, 37 L. R. A. (Neb.) 424, and notes; State v. Pryor, 46 L. R. A. (N. S.) (Wash.) 1028, and notes; State v. Whitsett, 232 Mo. 527; State v. Vaughn, 223 Mo. 155. (3) The jury having failed to assess the punishment after having determined the guilt of the defendants, it was the duty of the court to assess it. Sec. 5254, R. S. 1909; State v. Rollins, 226 Mo. 538; State v. Foster, 115 Mo. 448. (4) Instruction number 4, taken with the other instructions, correctly defined manslaughter in the fourth degree. State v. Montgomery, 230 Mo. 666; State v. Rose, 142 Mo. 427.

ROY, C. Williams, C., concurs.

OPINION

ROY, C.

Defendants were charged with murder in the second degree and convicted of manslaughter in the fourth degree. The jury disagreed as to the punishment. The court sentenced Herring to two years in the penitentiary, and Baldwin to pay a fine of five hundred dollars. They have appealed.

They were both employed as attendants in ward 3 of Hospital Number Two for the Insane at St. Joseph. They both had several years' experience in such employment and the evidence shows that they had been previously careful in such work. Ward 3 was one in which violent patients were confined, but other patients were kept there to do certain parts of the work necessary in caring for the patients. Joshua Wallace and George Young were two of the most dangerous patients in the ward. About December 15, 1904, Wallace had bitten off a large portion of one of the ears of defendant Baldwin. He had a reputation for biting. He was about twenty-eight years old. Both he and Young were about the average in size and strength. Wallace had worn "restraints" for a considerable period of time, but they had been removed several days prior to the alleged offense. Those restraints were leather straps around his body and around his wrists.

Patrick J. Fitzpatrick, one of the patients, testified for the State as follows: "A. Well, that morning before we went to breakfast Wallace was going around mumbling. He was a vicious patient, a man that would bite. He was going around mumbling over them coming out. He was not a crazy man, he was just simply mad, acted like he was mad and foamed at the mouth. He was going around mumbling and he kept that up before breakfast. After breakfast he got worse, I mean he acted like he was going to do something. Murphy was at the back end of the hall -- "Q. Who is Murphy? A. He is a patient in ward 3. Murphy kind of went toward him. I was in the middle of the hall. I thought I would go back and help Murphy quiet him down. I knew the attendants were at breakfast, and when I got back there the attendants came back behind me, and when I saw them I thought there was plenty to handle him and I went back to my work, and they had led him off the hall.

"Q. Who led him off the hall? A. Mr. Herring and Mr. Baldwin. I think Mr. Smith came back there.

"Q. Tell the jury whether or not Murphy had any fight with Wallace? A. None whatever. They were just talking. Murphy was trying to quiet him so they would not hit one another.

"Q. You say Mr. Herring and Mr. Baldwin led the patient Wallace off the hall? A. They caught hold of him right at the entrance of the hall. It occurred right along there, and they got up to the entrance and took hold of him by the arms and led him out just like this, one on each side like this. Then I went back to my work.

"Q. Do you know how Wallace went around to make assaults upon patients that he was angry with, or on attendants? A. He went like a mad man.

"Q. Did he go with his mouth open? A. Yes, his mouth was open and he was frothing."

Thomas J. Murphy, another patient, testified:

"Q. I wish you would turn to these gentlemen and tell what occurred between Mr. Wallace and Mr. Herring and Mr. Baldwin on this Sunday morning that Mr. Wallace was killed? A. For the information of the jury, the ward is ward 3. It was just about breakfast time, after the patients had had their breakfast and the attendants, the gentlemen mentioned, had just about finished their breakfast, and Mr. Wallace, who was running a rubber, there were about thirteen or fourteen other men running rubbers, and they kept passing by where I was stationed. I was stationed at the table which belonged to these gentlemen mentioned, these attendants, and where they kept their property in the table and their reports. I watched it while they were out. On this last turn around Mr. Wallace stopped where I stood and made the remark, 'Those men didn't get all that was coming to them, didn't get enough,' and when he made the remark I told him he had to keep still and go on with the rubbing.

"Q. It was your business to help with the keeping of the patients? A. Yes, and to call their attention to them if they tried to make trouble. By calling attention to a patient always some attendant responds, and we work that way. Mr Herring and Mr. Baldwin had about that time started out of the dining room, and I walked along with Wallace so he would keep on with the rubber, so I met them coming on and told them what Mr. Wallace had said in regard to themselves, and they started to quiet Mr. Wallace the way they had before, that is, take...