The State v. Hyland

• Decision Date: 31 May 1898
• Citation: 46 S.W. 195,144 Mo. 302
• Parties: The State v. Hyland, Appellant
• Court: Missouri Supreme Court

46 S.W. 195

144 Mo. 302

The State v. Hyland, Appellant

Supreme Court of Missouri, Second Division

May 31, 1898

Appeal from Jackson Criminal Court. -- Hon. John W. Wofford, Judge.

Affirmed.

Isaac B. Kimbrell for appellant.

(1) There is no testimony to support instruction number 4, given by the court, and it did not properly define murder in the second degree. State v. Wieners, 66 Mo. 20; State v. Curtis, 70 Mo. 594; Fitch v State, 36 S.W. 584. (2) Instruction number 6 is erroneous. Using the words "did by a blow of his fist kill David Fitzgerald involuntarily" was commenting upon the evidence, and furthermore it was confusing and misleading. State v. Wieners, 66 Mo. 20. (3) Defendant's refused instruction to the effect that if appellant killed deceased in heat of passion by a blow of his fist upon sudden combat without any undue advantage being taken and without any dangerous weapon being used, etc should have been given. Our legislature has so declared the law. R. S. 1889, sec. 3463; People v. Bushton, 80 Cal. 160. (4) The instruction on self-defense should have been given here. Prickett v. State, 22 Ala. 39; Wharton's Crim. Law [10 Ed], sec. 628; Kelley's Crim Law [2 Ed.], sec. 502; 78 Ky. 183; 39 Am. Rep. 213. (5) It was error to permit the prosecuting attorney without rebuke to state to the jury that if defendant had offered evidence of his good character the State could have shown that his character was bad, and that it was strange that here, where he had lived for years, he could not get any one to testify to his good character. Wharton's Crim. Ev. [8 Ed.], sec. 64; State v. Creson, 38 Mo. 372. (6) The verdict was against the evidence in this case. There was no evidence of malice. R. S. 1889, sec. 3477; State v. Nueslin, 25 Mo. 122; State v. Vollmer, 40 N.W. Neb. 420; State v. Alexander, 30 S.C. 74; State v. Wieners, 66 Mo. 21; Wharton's Crim. Law [10 Ed.], secs. 324 and 457.

Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.

(1) The mode of killing is not material. It is only material that it be shown that the deceased died of the injury inflicted, as its natural, usual and probable consequence. 2 Bishop's Crim. Law, sec. 635; 3 Greenl. on Ev. [15 Ed.], sec. 140; Cox v. People, 80 N.Y. 500; Rex v. Kelley, 1 Moody C. C. 113; Rex v. Thompson, 1 Moody C. C. 139; R. S. 1889, secs. 3459, 3460. (2) If an assault be committed with intent to inflict serious bodily injury, from which death might easily ensue, and death does ensue, the offense will be murder. Harrell v. State, 13 Tex.App. 374; White v. State, 13 Tex.App. 259; Adams v. People, 109 Ill. 444; 1 McClain's Crim. Law, sec. 325; Whart. Crim. Law [9 Ed.], sec. 315. (3) The instructions given by the State are approved instructions and cover every phase of the case. State v. Stephens, 96 Mo. 637. (4) And there was no error in refusing to instruct on the law of self-defense. The record absolutely discloses no facts under which such an instruction could be predicated. Neither was there error in refusing to instruct upon the theories of excusable and justifiable homicide. The evidence discloses no such case. R. S. 1889, secs. 3462, 3463; 9 Am. and Eng. Ency. of Law, 537, 538 and 539. (5) There was no error in the remarks of the prosecuting attorney. They show that they were called for by some remarks previously made by counsel for defendant. Com. v. Weber, 167 Pa. St. 153; State v. McCann, 16 Wash. 249; State v. Taylor, 134 Mo. 109; State v. Conley, 106 Mich. 429.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

Gantt, P. J.

The appellant was tried and convicted at the September term, 1897, of the Jackson county criminal court of murder in the second degree and from that sentence appeals to this court. The indictment is as follows:

"The grand jurors for the State of Missouri in and for the county of Jackson, upon their oath present that Thomas Hyland, whose Christian name in full is unknown to these jurors, late of the county aforesaid, on the 3rd day of May, 1897, at the county of Jackson, State of Missouri, then and there being, in and upon one David Fitzgerald, then and there being, feloniously, willfully, deliberately, premeditatedly, on purpose, and of his malice aforethought, did make an assault, and that the said Thomas Hyland then and there feloniously, willfully, deliberately, premeditatedly, on purpose and of his malice aforethought, with his fist in and upon the body, jaw and head of him, the said David Fitzgerald, did strike, knock, hit and beat, and did then and there feloniously, willfully, deliberately, premeditatedly, on purpose and of his malice aforethought, knock, push, cast and throw him, the said David Fitzgerald, with great force and violence, down, in and upon the asphalt pavement, brick sidewalk and stone curbing, then and there being, and the said Thomas Hyland, thus and thereby, then and there, feloniously, willfully, deliberately, premeditatedly, on purpose and of his malice aforethought, as well as by striking, knocking, hitting and beating him, the said David Fitzgerald, in and upon the body, jaw and head, as by the said knocking, pushing, casting and throwing of him the said David Fitzgerald, down, in and upon the said asphalt pavement, brick sidewalk and stone curbing, feloniously, willfully, deliberately, premeditatedly, on purpose and of his malice aforethought, giving to him, the said David Fitzgerald, then and there and thereby, in and upon the head of him, the said Fitzgerald, one mortal blow, bruise, contusion, stroke, fracture of the skull and wound, the said David Fitzgerald, from the said 3rd day of May, 1897, until the 12th day of May, 1897, did languish, and languishing did live, on which said 12th day of May, 1897, the said David Fitzgerald, at the county of Jackson and State of Missouri, of the mortal blow, bruise, contusion, stroke, fracture of the skull and wound aforesaid, died. And so the grand jurors aforesaid, upon their oaths aforesaid, do say that the said Thomas Hyland, him, the said David Fitzgerald, in the manner and by the means aforesaid, feloniously, willfully, deliberately, premeditatedly, on purpose and of his malice aforethought, did kill and murder against the peace and dignity of the State."

On September 27, 1897, at said September term of said court, defendant was duly arraigned, and upon such arraignment entered his plea of not guilty to the indictment aforesaid. The defendant introduced no evidence. The uncontradicted evidence of the State shows that on the night of May 3, 1897, the defendant, the deceased and some other men were at the saloon of one Mulcahey, at 809 Independence avenue, Kansas City, Missouri, where they were drinking to some extent. That there was some talk about prize fighting; that there were no harsh words between defendant and deceased at this place. That deceased first left this saloon and went to Haney's saloon at the corner of Independence avenue and Holmes street, and entered the saloon there. That after lighting his cigarette, deceased left this saloon by passing through the screen door and stepped to the front of the saloon and was standing upon the sidewalk near the curbing in front of said saloon. That defendant and witness James Riley and other parties left Mulcahey's place after the deceased had left; that defendant walked up to the deceased and as deceased stood upon the sidewalk in front of Haney's saloon, spoke to the deceased, saying, "Hello, Rock" or "Dave," calling him by name, and as deceased turned round and said to defendant, "Hello, Tom," defendant struck deceased with his fist in and upon the head or jaw, knocking him down on the sidewalk or curb; that this blow was entirely unprovoked and uncalled for; that by the blow and fall deceased was rendered unconscious and received four fractures in and about the head, from which, within eight days thereafter, he died; and all this occurred in Jackson county, Missouri. The proof further shows that defendant admitted the assault upon deceased to a witness orally and by written statement, all of which is fully set out in the record.

The case was presented to the jury upon this evidence upon instructions covering murder in the first degree, murder in the second degree and manslaughter in the fourth degree. The verdict was for murder in the second degree, fixing the punishment at ten years in the penitentiary and judgment accordingly. The defendant saved exceptions to the action of the court in giving the instructions it gave and to the refusal of defendant's instructions and to certain remarks of the prosecuting attorney.

The defendant's instructions which were refused are as follows:

"1. The court instructs the jury that even if you find and believe from the evidence that the defendant struck David Fitzgerald with his fist and that the blow caused the death of Fitzgerald, still if you further find that the blow was given in heat of passion, upon any sudden or sufficient provocation, or upon sudden combat, without any undue advantage being taken, without any dangerous weapon being used, and not in a cruel and unusual manner, you will find the defendant not guilty.

"2. The court instructs the jury that the homicide is deemed excusable when committed by accident or misfortune in either of the following cases: First, in lawfully correcting a child, apprentice or servant, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without unlawful intent; second, in heat of passion, upon any sudden or sufficient provocation or upon sudden combat, without any undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel and unusual manner.

"3. To constitute the right of self-defense, the...