The State v. Knight

• Decision Date: 06 January 1926
• Docket Number: 26448
• Citation: 278 S.W. 1036,312 Mo. 411
• Parties: THE STATE v. HARRY KNIGHT, Appellant
• Court: Missouri Supreme Court

278 S.W. 1036

312 Mo. 411

THE STATE v. HARRY KNIGHT, Appellant

No. 26448

Supreme Court of Missouri

January 6, 1926

Appeal from Henry Circuit Court; Hon. C. A. Calvird, Judge.

Affirmed.

Harry Friedberg, Harold P. Ragland and Frans E Lindquist for appellant.

(1) The circuit court erred in overruling the defendant's motion to discharge the jury. Secs. 6621, 6636, R. S. 1919. (2) The court erred in not giving the jury proper instructions as to the law governing the case. Sec. 3223, R. S. 1919; State v. Sillbaugh, 250 Mo. 308; State v. Gabriel, 301 Mo. 365; State v. Jones, 273 S.W. 830; State v. Williams, 274 S.W. 50. (3) This cause must be reversed and remanded for failure to properly instruct on the law of self-defense. State v. McNamara, 100 Mo. 105; State v. Helton, 234 Mo. 564; State v Wicker, 222 S.W. 1014; State v. Gabriel, 301 Mo. 365; State v. Jones, 273 S.W. 730.

Robert W. Otto, Attorney-General, for respondent; C. E Curtis of counsel.

(1) The court committed no error in overruling defendant's motion to quash the panel of jurors. The statute providing for the impanelling of juries in criminal case is merely directory, and a failure to comply with its provisions will not be ground for a new trial, in the absence of circumstances from which it may be inferred that defendant has been prejudiced thereby. There was no showing of any prejudice in this case. State v. Riddle, 179 Mo. 287; State v. Hayes, 262 S.W. 1036; State v. Jackson, 227 S.W. 649; State v. Jackson, 167 Mo. 291; State v. Gleason, 88 Mo. 582; State v. Breen, 59 Mo. 413; Bank v. Durrill, 61 Mo.App. 543; Blankenship v. State of Okla., 139 P. 840; 17 C. J. p. 290, sec. 3629. (2) The court committed no error in overruling defendant's motion for new trial because the jury, in custody of the sheriff, went from Henry County to Johnson County during the trial of the defendant. Where the jurors are not subjected to improper influences it is not misconduct that the jury in a body, while in charge of an officer, is taken beyond the confines of the county. Since no separation was shown, the burden was upon the defendant to show circumstances from which improper influence and prejudice were the just inferences. This was not done. 16 C. J. p. 1073, sec. 2519; State v. Spaugh, 200 Mo. 608; State v. Tarwater, 293 Mo. 291; State v. Prince, 258 Mo. 328; State v. Baber, 74 Mo. 292; State v. Perry, 44 N. C. (Busb.) 330; Thompson v. Commonwealth, 8 Gratt (Va.) 637. (3) Appellant's assignment to the effect that the court committed error in re-reading a part only of the charge to the jury upon their failure to agree after deliberation, is not here for review. Allegations in a motion for new trial do not prove themselves. There is nothing in the record to show the occurrence of the fact of which appellant claims error. Reference to this matter appears only in the motion for new trial. This is not sufficient. State v. Williams, 263 S.W. 197; State v. Creely, 254 Mo. 382, 397; State v. Langford, 293 Mo. 436; State v. Foster, 115 Mo. 448; 16 C. J. p. 1225, sec. 2743. (4) The court did not commit error by failing to instruct on the theory of self-defense. There was no evidence which would require such instruction. The defendant denied that he struck the deceased and killed him. He offered no evidence of self-defense. State v. Lemon, 263 S.W. 186; State v. Jenkins, 178 S.W. 91; State v. Kritschmar, 232 Mo. 29; 13 R. C. L. sec. 119, p. 813; State v. Pleake, 177 S.W. 357. Defendant can't complain of court's failure to instruct on law of self-defense; he made no such request. State v. Reich, 293 Mo. 425; State v. Gaultney, 242 Mo. 388.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

On August 31, 1923, the Prosecuting Attorney of Johnson County, filed in the circuit court of said county, a verified information, charging therein that, on June 23, 1923, the defendants, Harry Knight (alias Falkner Knight), Guy Knight, Frank Carey and Chester Kerr, did feloniously, willfully, deliberately, premeditatedly and of their malice aforethought, kill and murder George McCormick in Johnson County, Missouri. On September 3, 1923, defendants waived arraignment and plead not guilty. A change of venue was granted defendants and the cause sent to Henry County Circuit Court. On March 31, 1924, defendant Harry Knight appeared with his attorney in the Henry County Circuit Court, and filed a motion for a severance, which was by the court sustained. Appellant again entered a plea of not guilty, and announced ready for trial. On April 3, 1924, he filed a motion to quash the panel of forty jurors, and to discharge them. This motion is set out as a part of the record proper, and was overruled by the court. It is not set out in the bill of exceptions, nor is it called for therein. On April 9, 1924, the jury before whom the case was tried returned into court the following verdict:

"We, the jury find the defendant guilty of murder in the second degree and assess his punishment at imprisonment in the Penitentiary for a term of 15 years."

On April 12, 1924, defendant filed motions for a new trial and in arrest of judgment, both of which were overruled. Thereafter, on April 14, 1924, he was granted allocution, judgment rendered, sentence pronounced in conformity to said verdict, and on the same day an appeal was allowed defendant to this court.

The general facts are correctly and substantially stated by counsel for respondent as follows:

The evidence on behalf of the State tended to show the following facts:

In the town of Holden, Jackson County, Missouri, George McCormick and Ben Knight were neighbors, owning adjoining lots. Their homes were located on Main Street. Knight's family consisted of his wife, defendant and two other children. Knight lived just south of McCormick, and owned about thirty acres of land in Holden. He raised hogs on this land. Some of his hogs had gotten out and damaged McCormick's garden. The latter had killed some of the hogs. He had been arrested for this at the instance of the Knights (Ben Knight and the defendant). This affair had caused a bitter feeling between the two families, and they had quarreled more or less about the hogs getting out. Such was the state of affairs, up to and immediately preceding the killing of George McCormick on June 23rd. The evidence shows further that on the evening of June 23, 1923, between the hours of five and six o'clock, the deceased, George McCormick, was at his home in Holden. A Mr. Smith was a visitor there on that day. The deceased and Mr. Smith were on the back porch of deceased's home when a car drove up in front of the house and stopped. One of the occupants of the car called for McCormick to come out. The latter, who was repairing a violin, put down the violin and started out in front. The defendant, Harry Knight, came from the car over toward the deceased, and began a conversation relative to the killing of Ben Knight's hogs. When within a few feet of the deceased, the defendant started to put his hand to his hip, as if to get a gun, and the deceased knocked him down. Ben Knight and Guy Knight then got out of the car and assaulted McCormick. The evidence upon the part of the State shows next, that the deceased was lying on the ground and was being kicked by the Knights. At this time, Harry Knight, the defendant, hit the deceased over the head with the butt of his revolver. McCormick was then dragged from his potato patch opposite the house to the sidewalk, and left there. His clothes were torn and his body severely bruised. About this time Ben Knight started for the car, which had in the first place been parked in the street southwest of the house, and got something out of it and started back toward deceased, saying, "By God, if you can't finish him, I will." At this moment, Lowell McCormick, a son of the deceased, shot Ben Knight. The defendant and the other men then got back into the car, put Ben Knight on the running-board, drove on up to their house, and laid Ben Knight on the grass nearby. Defendant and his companions then left town. Defendant was arrested a few days later in Mobile, Alabama.

The evidence on the part of the defendant tended to prove the following:

On the day of the killing the defendant was in Kansas City. He and his brother, Guy, and two or three friends of theirs, started to Holden; on their way down, at Kingsville, Missouri, they saw Ben Knight, their father, and he got in the car with them to go to Holden. When they got in front of George McCormick's house, they saw some of their hogs in the street and defendant got out of the car to head the hogs. Defendant's mother and sister were coming after the hogs. Just as Harry Knight started to head the hogs, the deceased came across the street and said he would kill all of them as he had killed the hogs. This was said after Harry had asked McCormick about his killing some of their hogs. McCormick then knocked Harry Knight down. Guy Knight got out of their car and McCormick knocked him down, also. While McCormick was fighting with Guy Knight, Frank Kerr and Harry Carey, Ben Knight hit him over the head with a wrench from which blow he died. Lowell McCormick or Mr. Smith then shot Ben Knight. The defendant and his companions then left the scene of the action.

I. The information is in proper form. Counsel for appellant in their reply brief concede that it is sufficient and, hence, we have not set it out or cited authorities sustaining same.

II. The court is charged with error in overruling appellant's motion to quash the panel of forty jurors and to discharge them. The motion referred to under this assignment is set out in full as a part of the record proper but it is not set out in the bill of exceptions, nor is it called for therein. The ruling of the trial...