The State v. Horn

• Decision Date: 11 June 1907
• Parties: THE STATE v. GEORGE HORN, Appellant
• Court: Missouri Supreme Court

103 S.W. 69

204 Mo. 528

THE STATE v. GEORGE HORN, Appellant

Supreme Court of Missouri, Second Division

June 11, 1907

Appeal from St. Francois Circuit Court. -- Hon. Chas. A. Killian Judge.

Reversed and remanded.

Jerry B. Burks and W. S. Anthony for appellant.

(1) The information does not charge murder. In fact, it wholly fails to charge that Francis Burns, or any other person, for that matter, died from the wounds received at the hands of defendant, George Horn. This is an essential averment, and cannot be dispensed with nor supplied by intendment or implication. State v. Blan, 69 Mo. 321; State v Hagan, 164 Mo. 654; State v. Sides, 64 Mo. 383; State v. Pemberton, 30 Mo. 376; State v Wilson, 172 Mo. 423; Kelley's Crim. Law, sec. 474. (2) The court erred in admitting the dying declaration of Francis Burns. No sufficient foundation was laid to warrant the introduction of said statement; and because it did not purport on its face to be a free and voluntary statement of deceased. On the contrary, it was obtained and drawn out by a series of leading questions, all of which indicated the nature of the answer desired. State v. Partlow, 90 Mo. 608. (3) The court unquestionably committed serious error in giving instruction 7, at the instance of counsel for the State, for the following reasons: 1. Because it singles out a special fact and makes the whole case turn upon it. 2. It tells the jury that deceased had the right to resist or act, not only as an individual, but as constable or officer as well, when as a matter of fact, he was at no time acting as an officer; his dying statement shows this to be the fact, and the court had, in its instruction 14, so declared. 3. It denies the right of a man to defend his home and person against trespassers, and against those seeking to commit a felony upon persons or property, and makes him a murderer if he does so. 4. It makes defendant guilty of murder in the first degree, if the jury finds that Burns was not a trespasser in going on the premises of defendant, regardless of what he did while on the premises. State v. Rutherford, 152 Mo. 133; State v. Mathews, 148 Mo. 185; State v. Taylor, 143 Mo. 150; State v. Hill, 69 Mo. 451; State v. Gartrell, 171 Mo. 516; State v. Clayton, 100 Mo. 521. (4) The court committed error in permitting Mrs. Bennett to testify that Burns stated in the yard of defendant, after the shooting, that he did not know what would become of his poor children. It was no part of the res gestae and was wholly incompetent for any purpose. State v. Hendricks, 172 Mo. 672. (5) Instruction 4, on manslaughter, given on motion of the court, does not state the law correctly and was necessarily contradictory to other instructions given by the court on manslaughter in the fourth degree. It is unintelligible and necessarily had a tendency to divert the minds of the jury from the true issues in the cause.

Herbert S. Hadley, Attorney-General, N. T. Gentry, Assistant Attorney-General, and George M. Wilson for respondent.

(1) The amended information, which was accompanied by the affidavit of the prosecuting attorney, is sufficient in form and substance. State v. Hudspeth, 150 Mo. 19; State v. Worton, 139 Mo. 532. (2) (a) Defendant's counsel objected to State's witness Mrs. Bennett testifying that, immediately after the shooting, the deceased called for help; that she told him she could not help him, but she could get some one who could; and that the deceased said he was going to die, and did not know what would become of his poor children. This evidence was clearly a part of the res gestae, as the conversation was immediately after the shooting; it was an expression of pain, and an opinion that the deceased could not recover, and was, therefore, admissible. State v. Martin, 124 Mo. 514; State v. Hudspeth, 150 Mo. 26; State v. Talbert, 41 S.C. 530; 1 Wharton's Law of Evid., sec. 259. (b) Defendant's counsel further objected to the dying declarations, which were offered and read in evidence by the State. But by reading all of the testimony of the witness Alexander on the surroundings and statements of the deceased, relative to his having given up all hope of recovery, it will be seen that said declarations were properly admitted. State v. Kilgore, 70 Mo. 551; State v. Parker, 172 Mo. 191; State v. Turlington, 102 Mo. 656; 1 Greenl. on Evidence, sec. 158; 2 Wigmore on Evidence, secs. 1438-1441; 1 Elliott on Evidence, sec. 349; Underhill on Crim. Ev., sec. 103; Whart. Crim. Ev., sec. 276. (3) Instruction 7, asked by the State, is not subject to the defendant's criticisms, but correctly defines the law on the subject of deceased's right to be on defendant's premises. It is the counterpart of defendant's instruction 13, which the court gave at defendant's request. If one of said instructions is erroneous, then both are erroneous; and the error in one off-sets the error in the other, in which event defendant is not entitled to a reversal. State v. Sykes, 191 Mo. 82.

OPINION

FOX, P. J.

This cause is brought to this court by appeal on the part of the defendant from a judgment of the circuit court of St. Francois county, convicting him of murder of the first degree. The conviction and judgment in this case rest upon an amended information filed by the prosecuting attorney of St. Francois county, which was duly verified. Omitting formal parts, it was as follows:

"Now at this day comes George M. Wilson, prosecuting attorney within and for the county of St. Francois and State of Missouri, leave of court having been first had and obtained, and files this, his first amended information.

"Now at this day comes George M. Wilson, prosecuting attorney within and for the county of St. Francois, and State of Missouri, upon his oath of office, and upon his knowledge, information and belief, and informs the court that George Horn, late of the county aforesaid and State aforesaid, on the 4th day of September, A. D. 1905, at and in the county of St. Francois and State of Missouri, with force and arms, in and upon one James Francis Burns, in the peace of the State, then and there being, feloniously, wilfully, deliberately, premeditatedly and of his malice aforethought, did make an assault; and that the said George Horn, with a certain dangerous and deadly weapon, towit, a revolving pistol, then and there loaded with gunpowder and leaden balls, which he, the said George Horn, in his hand then and there had and held at and against him, the said James Francis Burns, then and there feloniously, wilfully, deliberately, premeditatedly, on purpose and of his malice aforethought did shoot off, discharge and with the revolving pistol aforesaid, and with the gunpowder and leaden balls aforesaid, then and there feloniously, wilfully, deliberately, premeditatedly on purpose and of his malice aforethought, did shoot, strike, penetrate and wound him, the said James Francis Burns, in and upon the body of him, the said James Francis Burns, then and there with the dangerous and deadly weapon, to-wit, the revolving pistol aforesaid and the gunpowder aforesaid and the leaden balls aforesaid, giving to him, the said James Francis Burns, in and upon the body of him, the said James Francis Burns, one mortal wound, of which said mortal wound aforesaid, he, the said James Francis Burns, from the fourth day of September, A. D. 1905, until the twenty-third day of September, A. D. 1905, in the county of St. Francois and State of Missouri, and the city of St. Louis and State of Missouri, did languish and languishing did live, on which said twenty-third day of September, A. D. 1905, in the city of St. Louis, and State of Missouri, of the mortal wound aforesaid, then and there did die.

"And so George M. Wilson, prosecuting attorney aforesaid, on behalf of the county and State aforesaid, upon his oath of office aforesaid, and upon his knowledge, information and belief, aforesaid, does inform the court that the said George Horn, him the said James Francis Burns, in the county of St. Francois and State of Missouri, in the manner and by the means aforesaid, feloniously, wilfully, deliberately, premeditatedly, on purpose and of his malice aforethought, did kill and murder, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State."

To this information there was a plea of not guilty and the defendant, at the May term, 1906, was put upon his trial. We shall not undertake to detail all of the evidence developed at the trial of this cause. It is sufficient, in order to enable us to determine the legal propositions presented, to indicate what the testimony developed at the trial tended to prove.

The testimony on the part of the State tended to show that on the afternoon of September 4, 1905, there was a picnic at Elvins about one mile from Flat River, and that Francis Burns was at the picnic, and that witness Carl Norwine told the deceased, who was constable of St. Francois township, that defendant's wife, Mrs. George Horn, wanted him to come over to the house and take charge of George and take him to Farmington until he got sober. After having this conversation with Norwine the deceased went to the house of Mr. Medlock, the son-in-law of the defendant, and Medlock accompanied the deceased over to the house of the defendant. On arriving at the house of the defendant the deceased and Medlock found the defendant sitting on a couch in the front room, conversing with a neighbor, Mrs. L. A. Hunt. The defendant at that time was quiet and conducting himself properly. Mrs. Hunt testified that she arrived at Mrs. Horn's home about 3 p. m., September 4, 1905; that she found Mr. Horn sitting or lying on the sofa in the front room, and while she was talking to him Mr. Burns, the...