The State v. Murphy

• Decision Date: 18 February 1922
• Parties: THE STATE v. OWEN B. MURPHY, Appellant
• Court: Missouri Supreme Court

237 S.W. 529

292 Mo. 275

THE STATE v. OWEN B. MURPHY, Appellant

Supreme Court of Missouri, Second Division

February 18, 1922

Appeal from Macon Circuit Court. -- Hon. V. L. Drain, Judge.

Affirmed.

Matthews & Jones for appellant.

(1) The right to trial by jury is a fundamental right and this means trial by jury selected under the forms prescribed by law. The defendant had a right to expect and the court, as a matter law, was required in selecting the jury, to exhaust first the regular panel and the substitutes therefor and to require that the special venire should be taken from the body of the county. The statute does not contemplate that a defendant charged with murder should be tried by a jury selected at the mere whim or convenience of the sheriff. (2) The defendant was denied due process of law, in that he was not personally present at all stages of the trial and confronted by the witnesses against him. The court permitted the witness Ives in the course of the trial, to testify for the State, while the defendant, without fault on his part or the part of his attorneys, was absent from the courtroom and locked up in the county jail. The witness was sworn in the absence of the defendant and testified to matters material to the issues and was never re-sworn, nor did he re-testify to the facts testified to in the absence of the defendant, in the presence of the defendant, nor was the jury discharged in said cause or re-sworn in the presence of the defendant to try the case according to the law and the evidence. Art. 2, Secs. 22, 30 Mo. Constitution; State v. Bobbst, 269 Mo. 223; State v. Warner, 165 Mo. 399; State v. Hoffman, 78 Mo. 256; State v. Brown, 63 Mo. 439; State v. Smith, 90 Mo. 37; State v. Long, 209 Mo. 380; State v. Hope, 100 Mo. 347. The right of defendant to be present under the circumstances of this case is a right that cannot be waived by the defendant. Hopt v. People of Utah, 110 U.S. 574; Diaz v. United States, 223 U.S. 442; 8 R. C. L. 90. The defendant had the right to confront the witnesses against him. Spurgeon v. Commonwealth, 86 Va. 655. The court committed error in instructing the jury in the absence of the defendant. 8 R. C. L. 90; Diaz v. United States, 223 U.S. 442. (3) Instruction 3 does not properly define the law as to murder in the second degree. (4) The court committed error in giving Instruction 4, in that, it fails to point out and direct the jury how to ascertain whether the defendant had just cause or provocation for the homicide. The instruction is a mere abstract statement of the law and leaves the jury at sea in applying it to the evidence. (5) Instruction 4 does not define "just cause or provocation." "Just cause or provocation" is a legal conclusion deduced from a given state of facts. In the absence of a definition of "just cause or provocation" an instruction embodying the terms is error and Instruction 4 was error. State v. Harkness, 100 Mo. 666; State v. Ripley, 242 Mo. 479; State v. Grant, 152 Mo. 70. (6) The court committed error in giving Instruction 5 on behalf of the State, because the record contains no evidence of threats communicated to the defendant. The instruction assumes that the defendant based his conduct upon threats while the record shows that he acted solely upon appearances at the time of the homicide. It misleads the jury as to the real cause of the homicide. (7) The court committed error in giving Instruction 6 on behalf of the state, because said instruction assumes that the defendant made threats and voluntarily entered into the difficulty. There is no evidence in the record of threats against the deceased and the record clearly shows that the deceased started the difficulty on the morning of the homicide. On the false premises thus laid, the court tells the jury that they may find that the defendant was the aggressor and that he began the affray with the intent to commit murder. (8) Instruction 7 on behalf of the State should not have been given because it authorizes the jury to find: first, that the defendant sought the difficulty; second, that he brought it on; and third, that he voluntarily entered into it; and there is no evidence in the record to warrant even an inference that he sought the difficulty with the defendant, nor is there any proof that he brought it on, or voluntarily entered into it. The instruction is broader than the evidence in the case. (9) The court committed error in refusing Instruction 9, offered by the defendant. The defendant was entitled to have any theory of defense warranted by the testimony set forth in the instructions. 12 Cyc. 612; State v. Webb, 205 S.W. 187; State v. Douglass, 258 Mo. 291; State v. Starr, 244 Mo. 161; State v. Wineberg, 245 Mo. 575. (10) Instruction 10 offered by the defendant should have been given as correctly embodying the theory of manslaughter and applying the evidence thereto, and for further reason that no instruction given for the State or the defendant embodied the theory that the deceased was the aggressor. (11) The demonstration at the close of the argument was such as to sway the jury and to inflame it with passion and prejudice against the defendant, so that the defendant, by reason thereof, did not have a fair and impartial trial, and the court committed error, first, in refusing to discharge the jury at the request of defendant's counsel; second, in refusing to investigate and punish the offenders as requested by the counsel for defendant; third, in assuring the jury that it was not a planned demonstration but a spontaneous outburst, coming from every part of the large court-room; fourth, in failing to specifically charge the jury that they must disregard the demonstration; fifth, in failing to clear the courtroom and in allowing the jury to come in contact with the mob. State v. Rasco, 239 Mo. 533; State v. Dusenberry, 112 Mo. 293; State v. Gartell, 171 Mo. 513.

Jesse W. Barrett, Attorney-General, and J. Henry Caruthers, Assistant Attorney-General, for respondent.

(1) The competency of a juror is a mixed question of law and fact, to be determined by the trial court from the whole examination, and the finding of the court, unless clearly wrong, will not be disturbed by this court. State v. Cook, 84 Mo. 40; State v. Gonce, 87 Mo. 627; State v. Cunningham, 100 Mo. 382; State v. Howard, 118 Mo. 127; State v. Brown, 119 Mo. 527; State v. Jackson, 167 Mo. 291. (2) When the record shows that the defendant was present at the commencement or at any other stage of the trial it shall be presumed, in the absence of all evidence in the record to the contrary, that he was present during the whole trial. Sec. 4008, R. S. 1919; State v. Lewis, 69 Mo. 92; State v. Yerger, 86 Mo. 33; State v. Neighbors, 179 Mo. 351; State v. Brock, 186 Mo. 457; State v. Long, 209 Mo. 336. The record proper can never be contradicted by anything contained in the bill of exceptions. The record proper in the case at bar shows the presence of the defendant from arraignment to appeal. Weber v. Schmeisser, 7 Mo. 601; State to use v. Sanger, 28 Mo. 314; State v. Steptoe, 65 Mo. 640; State v. Timeus, 233 Mo. 308. (3) The record shows that all the instructions given the jury were in writing and in the presence of the defendant. Appellant complains in his brief that the court erred in "instructing" the jury in appellant's absence. The bill of exceptions fails to show that the court gave any instructions to the jury in the absence of appellant and that timely exceptions were made thereto, hence nothing presented to this court on this point for review. State v. George, 214 Mo. 262; State v. Upchurch, 191 Mo. 43; State v. Finley, 193 Mo. 202. (4) Instruction 3 for the State correctly declares the law and was properly given. State v. Bauerle, 145 Mo. 18. (5) Instruction 4 for the State on manslaughter should not have been given, for the reason that there is no evidence in the case that the killing was done in a heat of passion, but on the contrary the defendant's own testimony was that his "intention in shooting was to keep himself or his father from being killed." 2 Bishop's New Criminal Law, sec. 718; State v. Webb, 205 S.W. 187; State v. McKenzie, 228 Mo. 385; State v. Baker, 246 Mo. 375; State v. Rumfelt, 228 Mo. 443. (6) Threats alone will not justify an assault, and Instruction 5 for the State correctly stated the law and applied to the evidence. State v. Elliott, 90 Mo. 350; State v. Griffin, 87 Mo. 608; State v. King, 78 Mo. 555; State v. Barrett, 240 Mo. 161; State v. Gieseke, 209 Mo. 331. Appellant had drawn a gun on deceased the day before the killing which was a serious threat and sufficiently supports Instruction 6 for the State as to defendant's intention. State v. Pennington, 146 Mo. 27, 35. (7) One who seeks, brings on or voluntarily enters a difficulty for the purpose of wreaking his malice is not entitled to acquittal on the ground of self-defense. State's Instruction 7 on selfdefense is correct and was properly given under the evidence. State v. Gieseke, 209 Mo. 331; State v. Starr, 38 Mo. 270; State v. Partlow, 90 Mo. 608. (8) Defendant's Instruction 9, 10 and 11 were properly refused since there is no evidence that defendant shot deceased while in a heat of passion. State v. Webb, 205 S.W. 187. (9) The demonstration of the audience at the close of argument of the prosecuting attorney was spontaneous and not anticipated and the court promptly called it to order and directed the sheriff to keep order and admonished them to keep quiet. No exceptions were saved to the court's ruling and appellant only asked that jury be discharged, hence no reversible error. State v. Rasco, 239 Mo. 583; State v. Dusenberry, 112 Mo. 293; State v. Gartrell, 171 Mo. 513.

OPINION

DAVID E. BLAIR, J.

-- Defendant was convicted of murder in...