The State v. Prince
| Decision Date | 26 May 1914 |
| Citation | 167 S.W. 535,258 Mo. 315 |
| Parties | THE STATE v. JOE PRINCE, Appellant |
| Court | Missouri Supreme Court |
Appeal from Laclede Circuit Court. -- Hon. L. B. Woodside, Judge.
Affirmed.
Don O Vernon, J. T. Moore and I. W. Mayfield & Son for appellant.
(1) The statements attributed to the witness, Parrick, were at most only the opinion of the witness, without any acts statements, or declarations made by the defendant -- a conversation in which he is not present and takes no part and could not possibly have heard the accusations -- and the question being repeated three times in the presence of the jury, was extremely damaging and prejudicial, besides it was wholly incompetent and only calculated to damage the defendant, and was not admissible for the purpose of impeachment. State v. Taylor, 134 Mo. 154; McFadin v. Catron, 120 Mo. 263; Schloemer v Transfer Co., 204 Mo. 116; Hamburger v. Rinkel, 164 Mo. 407; State v. Murphy, 201 Mo. 691; State v. Hyde, 136 S.W. 332. (2) The court erred in not giving the instruction offered by the defense for a lower degree of murder. The evidence conclusively shows that the defendant did not enter into the difficulty with a design to take the life of deceased. All his acts and statements, as testified to by the State's witnesses, show that he intended to fight Jordon fair, and that he, if anything, intended only a common battery. If this is true, it was error on the part of the court to not give the instruction for manslaughter in the third degree. State v. Eastman, 240 Mo. 241; State v. Turner, 152 S.W. 313; State v. Robertson, 160 S.W. 214. (3) The court erred in not giving the defendant a new trial by reason of the argument of L. C. Mayfield, which was the closing argument on the part of the State. This argument was entirely out of the record and was highly inflammatory and prejudicial to the defendant. The extreme verdict, under the evidence and on a boy of the age of the defendant, shows passion and prejudice. This language was equivalent to saying, "There have been forty-three murders committed in Laclede county, and it is now time to stop it and that there should be a conviction in this case and an example made of this defendant." By the remarks of the attorney the die was cast, the poison was there, and an apology, if one was given, could not stop the force of the statement. The evidence offered on motion for new trial shows that no apology was made. The court does not say that an apology was made. State v. Wellman, 161 S.W. 795; State v. Ferrill, 136 S.W. 709; State v. Dietz, 138 S.W. 532; State v. Spivey, 191 Mo. 112. (4) The court erred in not granting the defendant a new trial by reason of the separation of the jury after they had received the instructions and while deliberating on the verdict. Secs. 5232, 5233, R. S. 1909; State v. Gray, 100 Mo. 523; State v. Murray, 91 Mo. 95; State v. Jeffries, 210 Mo. 332; State v. Witten, 100 Mo. 531.
John T. Barker, Attorney-General, for the State; Sutton & Huston of counsel.
(1) It is a serious question whether the bill of exceptions has been properly made a part of the record in this cause. It is well established that the record proper must show the filing of the bill, but the decisions indicate that the record proper must also show that the bill was by the court allowed and ordered filed and made a part of the record in the cause. Alt v. Dines, 227 Mo. 422; Sheppard v. Wagner, 240 Mo. 431; Bank v. Hutton, 224 Mo. 52; Novinger v. Railroad, 131 Mo.App. 338; Webster v. Berry, 140 Mo.App. 386; Fulkerson v. Houts, 55 Mo.App. 302; Thorp v. Railroad, 157 Mo.App. 501. As we construe the authorities, there must be made and signed by the judge and entered of record an order, separate and apart from the bill of exceptions, allowing the bill and directing it to be filed and made a part of the record. (2) The evidence was elicited for the purpose of impeaching the witnesss, Parrick, and it was clearly admissible for that purpose. The witness had testified that he did not know the defendant contemplated shooting Jordan, and had not heard defendant say anything about it. The statement made by Parrick to Hough, as testified to by him, was a direct contradiction of Parrick's testimony upon a material matter in issue, and no error was committed in receiving the testimony. State v. Talbott, 73 Mo. 360; State v. Taylor, 136 Mo. 72. (3) Instruction number 1 requested by defendant and refused by the court, upon manslaughter in the third degree, was properly refused. It has been repeatedly held that there can be no manslaughter in the third degree where the killing is wilful and intentional. State v. Watson, 95 Mo. 415; State v. Edwards, 70 Mo. 480; State v. Curtis, 70 Mo. 600; State v. Dunn, 80 Mo. 689; State v. Goldsby, 215 Mo. 54; Sec. 4462, R. S. 1909. All of the evidence in the case tends to show that the killing was intentional. Moreover, if one inflict a mortal wound, with a deadly weapon, upon a vital part, as in this case, he must be presumed to have designed the natural consequences of his act. State v. Dunn, 80 Mo. 689. (4) Defendant complains of the following language used by counsel representing the State: "The history of Laclede county has been stained by the blood of forty-three murders." The court immediately admonished counsel, and counsel immediately withdrew the statement and apologized to the court for having made the remark. Considering the corrective action of the court and counsel, the language cannot be regarded as prejudicial to the substantial rights of defendant. State v. Dipley, 242 Mo. 480; State v. Fenton, 248 Mo. 491; State v. Miles, 199 Mo. 553. There was, however, no exception taken by defendant to the ruling of the court, and no request was made for a rebuke from the court to counsel. The only exception taken was directly to the remark of counsel and not to the ruling of the court, but this cannot avail. State v. Wana, 245 Mo. 562. (5) There was no separation of the jury within the meaning of the statute: Secs. 5232, 5233, 5284, R. S. 1909; State v. Washburn, 91 Mo. 574; State v. Gregory, 158 Mo. 148; State v. Shipley, 171 Mo. 549; State v. Dyer, 139 Mo. 211; State v. Payton, 90 Mo. 228; State v. Spaugh, 200 Mo. 608.
From a conviction of the crime of murder in the first degree and the imposition of a life sentence, defendant appeals.
The information charges defendant, Joe Prince, as principal, and Arthur Prince and William Prince as accessories before the fact, with the murder of one Charles Jordan in Laclede county on May 31, 1913. A severance was granted and defendant was tried separately.
Alleged errors urged here for reversal are: (1) admission of incompetent evidence; (2) improper argument; (3) separation of the jury after the cause was submitted to them; and (4) the refusal of an instruction on manslaughter in the third degree.
The family of defendant consisted of his father, Arthur Prince, and several brothers who resided on a farm near the village of Pease in Laclede county. The deceased resided on an adjoining farm about seventy-five yards distant from defendant. There is a lane leading from the village of Pease to the farms occupied by defendant and deceased, which lane they used in common for a distance of about one hundred and fifty yards, where a gate opened into the field of deceased. The lane extended beyond said gate to the home of defendant.
There is only slight evidence of ill-will between defendant and deceased prior to the evening of May 30, 1913, at which time they engaged in a quarrel about a hog belonging to defendant which had gotten into the field of deceased. According to the State's witnesses defendant cursed and threatened to kill deceased on that occasion; while according to defendant's witnesses, deceased, during that quarrel, called defendant vile names and threatened to kill him. The wife of deceased testified that the quarrel and the accompanying threats made by defendant so alarmed her that she carried a shotgun to deceased to enable him to protect himself. However, neither the gun nor any other weapon was then used, and the quarrel ended without any physical violence to either party.
On the following morning deceased attended a sale several miles from home, going and returning on horseback through the lane hereinbefore mentioned. About one o'clock that day the defendant, with his father, one of his brothers and two of his brothers-in-law, Tom Parrick and Walter Green, went to Pease on foot and remained there until about five p. m. At that hour deceased rode into the village and stopped a few moments to get his mail. At or about the same time the deceased arrived at Pease, the defendant, his father and two brothers-in-law, started home along the lane before mentioned. The brothers-in-law, Parrick and Green, had passed the gate which connected the premises of deceased with the lane, a distance variously estimated at from ten to thirty steps, while defendant and his father were opposite said gate when the deceased overtook them. Deceased dismounted and was shot and killed by defendant with a revolver. There is a sharp conflict in the evidence as to who was the aggressor, the testimony of the State tending to show that deceased merely alighted from his horse to open the gate and did not wish any trouble with defendant; while the evidence on behalf of defendant is to the effect that deceased was advancing upon and threatening defendant with an open knife when killed.
Five witnesses for the State testified that they watched defendant, his father and brothers-in-law as they started home; that they stopped until deceased started to ride into the lane; that they then went on to the gate, which opened into the...
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