The State v. Mace
| Decision Date | 24 November 1914 |
| Citation | 170 S.W. 1105,262 Mo. 143 |
| Parties | THE STATE v. HOWELL MACE, Appellant |
| Court | Missouri Supreme Court |
Appeal from Miller Circuit Court. -- Hon. J. G. Slate, Judge.
Affirmed.
Barney Reed and Sid C. Roach for appellant.
(1) The court erred in overruling defendant's motion for new trial and of defendant's motion to exclude Juror J. S Lumpkin from the panel. R. S. 1909, sec. 7283. The evidence given by Juror J. S. Lumpkin on his voir dire examination shows that he had a fixed opinion as to the guilt or innocence of the defendant and that his opinion was such as to require evidence to overcome it and as to influence his judgment, and if so, he was not a qualified juror. Spangler v. Kite, 47 Mo.App. 233; Theobald v Transit Co., 191 Mo. 395. When an opinion is formed on newspaper reports alone, in order to qualify as a juror in his voir dire examination it should be shown and clearly appear from the record that such juror would fairly and impartially try the case and render a verdict based upon the evidence produced at the trial alone, notwithstanding such opinion. State v. Rasco, 239 Mo. 535; State v Bobbitt, 215 Mo. 10. (2) It is clear that Peach Wall was incompetent to serve as a juror in the trial of this case; he had, previous to the trial, formed and expressed his opinion in a pronounced manner among his neighbors, and in his voir dire examination concealed such fact from the defendant. Gibney v. Transit Co., 204 Mo. 704; State v. Foley, 144 Mo. 600. (3) The information in this cause is defective in that it fails to properly charge that the assault was committed by the defendant "with felonious intent," and the defendant's motion in arrest should have been sustained.
John T. Barker, Attorney-General, and S. P. Howell for the State.
(1) The information contains every essential element necessary to constitute the crime charged, and is drawn in accordance with forms which have repeatedly met with the approval of this court. Sec. 4481, R. S. 1909; Kelley's Crim. L. & Pr., sec. 576, p. 505; State v. Barton, 142 Mo. 453; State v. Johnson, 129 Mo. 26; State v. Bond, 191 Mo. 565; State v. Bartlett, 209 Mo. 404; State v. Foister, 202 Mo. 46; State v. Sovern, 225 Mo. 583. It is unnecessary to aver in the information, when the assault is made by shooting, that it was committed with a deadly weapon. The effect produced, as detailed in the evidence, is sufficient confirmation of the deadly qualities of the instrument employed. State v. Laycock, 141 Mo. 274; State v. Harris, 209 Mo. 434; State v. Keener, 225 Mo. 488. (2) The court did not err in accepting J. S. Lumkin as a juror in this case. This juror stated in his voir dire examination that he knew nothing about the case except from newspaper reports which did not pretend to give the details fully. Although he testified that he had formed an opinion, or rather an impression had been made upon his mind from such reading, yet he further stated that if he were selected as a juror in the case he would be governed by the law and the evidence and the instructions of the court. State v. Cunningham, 100 Mo. 388; State v. Schmidt, 136 Mo. 650; State v. Church, 199 Mo. 631; State v. Bronstine, 147 Mo. 530; State v. Darling, 199 Mo. 196; State v. Vickers, 209 Mo. 12; State v. Bobbitt, 215 Mo. 46; State v. Rasco, 239 Mo. 557. The juror Peach Wall was qualified and competent to serve as a member of the trial jury in this cause. It seems clear that whatever expression, if any, this juror had made prior to the trial was based on common rumor, and that it was leveled at the nature of the crime committed and not at the guilt or innocence of this particular defendant. Remarks based on common rumor and evidencing the existence of bias or prejudice against the crime committed constitute no sufficient ground for rendering a juror incompetent to serve as such. State v. Core, 70 Mo. 491; State v. Burns, 85 Mo. 47; State v. Gonce, 87 Mo. 629; State v. Sykes, 191 Mo. 76; State v. Reed, 137 Mo. 132; State v. Forsha, 190 Mo. 324; State v. Myers, 198 Mo. 250.
Defendant was tried in the circuit court of Miller county upon an information charging him with the violation of section 4481, Revised Statutes 1909, for that he had on purpose and of his malice aforethought shot one Herod Williams, with a certain shotgun. He was convicted and his punishment fixed by the jury at imprisonment in the penitentiary for a term of two years; from the sentence which followed he has duly appealed.
The information upon which the conviction of defendant was had becomes pertinent for the reason that he challenges the sufficiency thereof. The attack upon the information is somewhat general, but in order to illustrate the point we append this information (caption and verification, both of which were in due form, omitted), as follows:
"Walter S. Stillwell, prosecuting attorney within and for the county of Miller, in the State of Missouri, under his oath of office informs the court that one Howell Mace on the 1st day of July, 1913, at the county of Miller, in the State of Missouri, in and upon one Herod Williams, feloniously and on purpose and of his malice aforethought, did make an assault, and did then and there on purpose and of his malice aforethought feloniously shoot him the said Herod Williams, in and upon the head and neck of him, the said Herod Williams, with a certain shotgun which he the said Howell Mace then and there had and held in both his hands, with the intent then and there him, the said Herod Williams, on purpose and of his malice aforethought, feloniously to kill and murder, against the peace and dignity of the State."
The facts, in the light of the points urged for reversal, are not particularly pertinent, but in order that some connected idea may be had as to these facts, which to a slight extent illuminate the discussion of the alleged errors, we append them:
The defendant Mace and the prosecuting witness Herod Williams were farmers, residing on adjoining farms, some three miles from the little village of Uhlman in Miller county. The farm occupied by defendant lies north of that occupied by the prosecuting witness and is owned by defendant's father, one John Mace, who resides with him. A narrow lane, which it seems was only a few feet in width, runs between the two farms, which lane is fenced on either side by a single barbed wire. The house occupied by defendant and that occupied by the prosecuting witness were only some quarter of a mile apart and plainly in view from each other. Bad feeling had existed and divers other clashes had occurred between defendant and said Williams during a period of some two years.
On July 1, 1913, the day of the shooting, the prosecuting witness was engaged in plowing a field of corn. At about the hour of nine o'clock in the morning of that day he hitched his horse to a fence post and went to the house for the purpose of getting a drink of water. After getting this drink the prosecuting witness started back to his plowing and to the point where he had hitched his horse. About the time he got back near the place where he had been plowing he noticed, as he testifies, that a hen and a brood of chickens belonging to him, and which had been following his plow that morning, were over in a stubblefield belonging to the Maces. In order to make them return to his premises he picked up a rock or clod, which he threw at the hen, and thus frightened her and caused her to come back upon the prosecuting witness's side of the lane. Thereupon he turned toward his plowing and was in the act of unhitching the bridle rein of his horse from a post, to which he had tied it, for the purpose of again resuming his work, when he saw defendant running toward him from defendant's house, carrying a gun, using profane and vile epithets and saying, "I will kill you this time." The prosecuting witness tells us that he had not before on that morning seen defendant; that he had had no trouble with him or with any of his family that day and was at first in doubt as to whether the language of defendant was directed toward him. But as defendant continued to approach him, armed with a gun and in a threatening manner and upon his repeating the opprobrious epithet the prosecuting witness asked defendant to stop and come no further. Upon defendant replying with an oath and continuing to come toward the prosecuting witness the latter started toward his own house, meeting upon the way there his wife, who came toward him carrying a pistol. This pistol, the prosecuting witness testified, he asked his wife to give him, but she refused and the witness after a struggle with her, being unable to secure possession of the pistol, turned and went with her toward the fence where the horse was hitched and toward which point, as the context shows, the defendant was himself moving. An altercation then ensued between defendant on the one hand and the prosecuting witness and the latter's wife on the other, in the course of which both the defendant and the prosecuting witness called one another liars and in which the defendant, according to the testimony of both Mrs. Williams and the prosecuting witness, applied to Mrs. Williams a very vile epithet. After some further altercation the defendant fired at Williams with the gun which he was carrying, which it seems was a 20-gauge single-bar-reled shot gun loaded with number four shot, striking Williams in the forehead with a number of the pellets. Immediately thereupon the prosecuting witness called to his wife to shoot the defendant. Mrs. Williams began firing the revolver which she was carrying and continued to do so as rapidly as she could pull the trigger till she had fired five...
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