The State v. Jones
| Decision Date | 12 May 1896 |
| Citation | 35 S.W. 607,134 Mo. 254 |
| Parties | The State v. Jones, Appellant |
| Court | Missouri Supreme Court |
Appeal from Miller Circuit Court. -- Hon. D. W. Shackleford, Judge.
Affirmed.
W. S Pope with John W. Moore and T. B. Robinson for appellant.
(1) The conclusion of the indictment is insufficient. After stating the circumstances it should draw the conclusion that "so" the defendant feloniously did. 3 Chitty's Crim. Law, p. 737; State v. Pemberton, 30 Mo. 376; State v. Meyers, 99 Mo. 107; State v Terry, 103 Mo. 11; State v. Rector, 126 Mo 328. (2) The application for a continuance was improperly overruled. (3) With this evidence before the jury, the court instructed as to murder in the first and second degrees, but failed to instruct as to lower degrees of homicide, although especially requested to do so as to manslaughter in the third and fourth degrees. The defendant claims this to be error, and contends that the evidence warranted and required instructions as to manslaughter in the several degrees. State v. McKinzie, 102 Mo. 620; State v. Edwards, 70 Mo. 480; State v. Watson, 95 Mo. 411; State v. Curtis, 70 Mo. 599; State v. Branstetter, 65 Mo. 149; State v. Ware, 62 Mo. 597. (4) The court erred in excluding a portion of the evidence of George Gearhart. The deposition was taken under the provision of section 4150, Revised Statutes, 1889. The examination was conducted by the county and prosecuting attorney of the county in which the deposition was taken, and the part excluded is his cross-examination of the witness, to the benefit of which the defendant was entitled, after the same was brought out in the manner it was.
R. F. Walker, attorney general, and Morton Jourdan, assistant attorney general, for the state.
(1) The defendant complains that the court committed reversible error in overruling his application for continuance, but he did not preserve his application in his bill of exceptions, and hence this court will not undertake to investigate that proposition. State v. Griffin, 98 Mo. 674; State v. Pints, 64 Mo. 317. (2) It is not explained in what respect the verdict is wrong, or for what reason it should be in favor of the defendant. The testimony in this case shows the guilt of the defendant beyond question. The jury and the trial court, after hearing the testimony, have reached the conclusion that the defendant was guilty of murder in the second degree. This court will not undertake to weigh the evidence, and will only interfere with the verdict of the jury, because of the insufficiency of the testimony where there is a total failure of proof. State v. Fisher, 124 Mo. 462; State v. Young, 119 Mo. 494; State v. Punshon, 124 Mo. 448; State v. Banks, 118 Mo. 117. (3) Complaint is first made in the motion for new trial of the instructions given upon the part of the court. It is evident that at the time they were given counsel for appellant were satisfied with them, for no objections were made to any or all of them, nor were any exceptions saved to the giving of any of them. This being true, the defendant will not be heard to assert his complaint here. State v. Bosler, 119 Mo. 417; State v. Foster, 115 Mo. 448; State v. Elvin, 101 Mo. 243. (4) The remaining contention in the motion for new trial is that the court committed error so prejudicial to the defendant in both the admission of the testimony over his objections and the exclusion of his testimony upon the objection of the state. The first of these (page 4) was to the age of the oldest child of Mrs. Jackson, the wife of the deceased and the daughter of the defendant. The objection was simply "immaterial," which was equivalent to no objection at all. State v. Nelson, 33 S.W. 812; State v. Harlan, 32 S.W. 997; State v. Moore, 117 Mo. 395; State v. Smith, 114 Mo. 406; State v. Adams, 108 Mo. 208.
At the March term, 1894, of the circuit court of Miller county, Missouri, an indictment for murder in the first degree was preferred by the grand jury against the defendant for the murder of Isaiah Jackson. The defendant was duly arraigned at the same term, and the cause continued until the September term. The cause was again continued at the September term. A trial was had at the March term, 1895, resulting in the conviction of defendant of murder in the second degree, and his punishment fixed at twenty years in the penitentiary. Motions for new trial and in arrest were filed and overruled and defendant appeals.
The testimony in this case discloses these facts: That on the morning of October 15, 1893, the deceased and his family, consisting of his wife and two children, aged two years and ten months, respectively, were residing temporarily in a house upon the land of the defendant; that the defendant and his family, consisting of his wife and four children, were temporarily residing in another house upon his farm, some ten or twelve feet from the house in which Jackson and his family had been staying; that the deceased and the defendant, with their families, had been to the Indian Territory and had returned to Miller county the night before the homicide; that during the night before the homicide a child of Jackson's had been sick; that in the morning the Jackson family arose quite early, prepared and ate breakfast with a view to taking the child to a doctor; that after they had finished breakfast, the defendant, Jones, came in and began upbraiding them for having eaten breakfast before the Jones family had gotten up; that Jones remarked, "now that the white folks have eaten, the niggers will eat;" that both became angered; between the war of words Jones got up from the breakfast table, placed his hand in his hip pocket and Jackson, who was sitting six or eight feet away, got up and took his knife from his pocket, which remained unopened in his hand until after he left the room, when he returned it to his pocket; that when Jackson explained the reason for eating early that morning, he and wife were ordered from the house; that as Jackson left, Jones followed him to the door, took a double-barrel shotgun from the gun rack, which was just to the right of the door, leveled the gun and fired, the shot taking effect in the left side of the back. Jackson staggered and fell toward the corner of the house upon an ax which had been left there that morning after the cutting of some wood and kindling; that Jackson lived about fifteen minutes after he was shot.
The testimony tended strongly to prove that when the shot was fired, Jackson was walking in an easterly direction, and away from the defendant, and at the time the shot was fired he had no weapons in his hand or possession.
The defendant testified in his own behalf that he did not know whether he fired the shot, or whether the gun was discharged accidentally. He attempted to show by members of his family that the killing was in self-defense; some of his children testified that Jackson had the ax and was walking in the direction of Jones when the shot was fired. The defendant unsuccessfully attempted to impeach the character of his daughter, who was the principal witness for the state.
Various errors have been assigned and argued both orally and in the brief.
I. It was urged that the court erred in overruling the application of defendant for a continuance. This application is not made a part of the bill of exceptions and as it is not a part of the record proper it is not before us for review. Touching this point the bill of exceptions recites:
"The application for a continuance coming on to be heard it is made to appear to the court that all of the witnesses named in said application are now present here in court except H. C. Atkinson and the application for a continuance is overruled, to which action of the court defendant by counsel excepted then and there at the time."
The invariable practice has been to incorporate the application itself into the bill, otherwise it constitutes no part of the record.
II. It is next insisted that the judgment should have been arrested because the indictment is fatally defective. The indictment is in these words:
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