The State v. Robertson
| Decision Date | 09 December 1903 |
| Citation | 77 S.W. 528,178 Mo. 496 |
| Parties | THE STATE v. ROBERTSON, Appellant |
| Court | Missouri Supreme Court |
Appeal from Adair Circuit Court. -- Hon. Nat. M. Shelton, Judge.
Affirmed.
J. M McCall for appellant.
(1) The information avers and charges that defendant made an assault upon deceased with a pistol loaded with gunpowder and a leaden bullet. The evidence is conclusive that at the first discharge of the pistol a leaden ball was discharged therefrom, and that said ball did not strike the deceased but did strike the window; then, after the first fire, the pistol, so far as the information is concerned, was only loaded with gunpowder and as such could not be a deadly weapon, and the State ought not to be permitted to introduce any evidence to show that it was loaded with other leaden bullets. The demurrer should have been sustained. (2) The court erred in giving instruction 8 for the State. There was not a particle of evidence that the defendant went to Brashear with the intention or design of either compelling Conkle to sign a note with or for him, or of killing him if he refused -- there was no evidence to predicate this instruction upon -- there was no evidence that defendant had ever made any threats to do deceased any harm, and the evidence of the State's witnesses is that when defendant and deceased met in Brashear, on the day of the homicide they were on friendly terms and talked the matter over in a business way. (3) The court erred in failing to instruct on murder in the second degree. The shooting was done in a heat of passion and the court did not instruct upon the defendant's evidence in this particular. Besides this, the evidence for the State fails to show the element of deliberation. (4) The court erred in failing to sustain defendant's motion in arrest. The information is fatally defective in that it does not allege and charge that by reason of the wounding the deceased was (there-by) given one mortal wound; nor that by reason of said wounding he (thereby) died; or words of similar import. It is an inflexible rule in criminal pleadings that in all indictments for felonies, nothing can be left to intendment or implication. State v. Furgeson, 152 Mo. 92; S. C., 162 Mo. 668; State v. Hagan, 164 Mo. 654.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
(1) The simple reason that the gun may have contained more than one bullet is not sufficient to excuse the defendant from the charge in the information. While it may be true that the first shot from the pistol had no effect upon the deceased, but that he died from the effect of the third shot, yet the averment contained in the information is sufficient to support that fact and to warrant a verdict of guilty of murder in the first degree. (2) There was ample evidence showing that defendant went from Kirksville to Brashear with the sole purpose of securing the signature of deceased to the note in question and if he refused that he intended to kill him. Several witnesses testified as to declarations made by defendant in this respect. This, in connection with the fact that defendant and deceased had not been on friendly terms, is sufficient to support instruction 8, and no error was indulged in prejudicial to defendant in giving it to the jury. (3) The evidence shows no element of manslaughter. Defendant is shown to have been guilty of murder in the first degree, an inexcusable and unjustifiable homicide, no provocation whatever being shown for his conduct in the premises. The conduct of deceased was not such as to arouse or excite a heated passion in the breast of defendant. There is no evidence showing a provocation of that character; on the other hand, the whole of the testimony is to the effect that defendant left Kirksville and went to Brashear for the purpose of securing the signature of deceased to a note by which he could obtain two hundred and fifty dollars from the bank, and unless deceased signed the note defendant intended to kill him. It further shows that this intention was carried out and just as soon as defendant found that deceased did not intend to comply with his request he raised his gun and fired the fatal shot, which constitutes murder committed under circumstances which authorize a conviction for murder in the first degree. (4) It is not necessary to instruct on a lower degree than that warranted by the evidence, nor is it necessary to instruct upon any particular degree of murder unless there is evidence that the homicide was committed under circumstances which would constitute murder in that degree. State v. Sneed, 91 Mo. 552; State v. Robb, 90 Mo. 30; State v. Anderson, 89 Mo. 312; State v. Anderson, 98 Mo. 461; State v. Stilz, 97 Mo. 202; State v. Ellis, 74 Mo. 207; State v. Blunt, 91 Mo. 503; State v. Smith, 114 Mo. 604.
From a conviction of murder in the first degree in the circuit court of Adair county, the defendant prosecutes this appeal.
The prosecution is by information filed by the prosecuting attorney verified by his affidavit.
The information, save in one immaterial point, is in the usual form, long approved, and it is unnecessary to set it forth at length. The arraignment was regular, and no complaint is made as to the selection and impaneling of the jury.
The information charges that defendant on the 13th day of November, 1902, at the county of Adair in this State, willfully, deliberately, premeditatedly and of his malice aforethought, shot and killed George Conkle. The facts are in substance the following:
The shooting took place at the town of Brashear in Adair county. Deceased was defendant's father-in-law, a man about sixty-five years of age, who resided on a farm about half a mile outside the corporate limits of the town of Brashear. Defendant married deceased's daughter some years ago and lived with her until he left Missouri and went to Kansas several years thereafter. She then secured a divorce. In 1898, defendant enlisted in the service of the United States in the Spanish-American war. He returned by way of Washington to St. Louis and then to Kirksville. He went to Brashear and wrote a note to his former wife with the proposition that they should be married again. His proposition was accepted, but not without the opposition of the deceased and his family. Shortly afterwards the defendant bought a piece of land near Kirksville. In order to secure the money with which to pay for the farm, the deceased became defendant's security for one hundred dollars, while the balance was secured by deed of trust on the land. A short time prior to the 13th day of November, 1902, defendant and his wife concluded to sell the land and offered it to the deceased's brother, but he, fearing that some trouble might arise, declined to entertain the proposition.
On the morning of the homicide, the defendant and his wife boarded the train at Kirksville and went to Brashear for the purpose of selling the property to the deceased. Before leaving Kirksville a conveyancer was obtained and a deed to the land drawn conveying it to deceased, which was signed and acknowledged by the defendant and his wife. On reaching Brashear defendant went to the bank and asked the cashier if a note for one hundred and fifty dollars signed by the deceased was good. The cashier told him that it was. Defendant then said he would go out and secure the signature of deceased to the note and return. The note was made payable to the bank. The defendant and his wife left the bank and walked down the street about sixty feet when defendant noticed the deceased in a hardware store. He requested his wife to go in and call her father out. This she did. The deceased, defendant, and defendant's wife then walked from the hardware store to the corner, when defendant asked the deceased to sign the note, stating that they would then deliver the deed they had already executed to the land to him.
About this time Harvey Johnson, a witness for the State, came up and he heard the defendant say to the deceased, "How can you treat me so?" and the deceased said, "Treat, hell, see what I have already done for you," and in a moment thereafter the shooting occurred, the defendant stating that the deceased then threatened to do him some violence and made an attempt as though to draw a knife, and he drew a revolver and shot. The deceased lived but a few minutes there-after. The defendant was arrested in a short time, but not until he had endeavored to shoot himself and had cut himself badly with a knife in an attempt to take his own life. He was so weakened from the loss of blood that he became unconscious and remained in that condition for a considerable time.
In rebuttal, witnesses for the State testified that the deceased was in their full view during the conversation between deceased and defendant and that deceased at no time drew a knife or made any demonstration of an assault on defendant. The instructions will be noticed in the course of the opinion.
I. The first error assigned is that because the information alleges that the pistol with which defendant shot and killed deceased was "then and there loaded with gunpowder and a leaden bullet," and that "with the leaden bullet aforesaid, out of the pistol aforesaid, then and there by force of the gunpowder aforesaid by the said John Robertson discharged and shot off as aforesaid," the defendant "did strike, penetrate and wound him the said George Conkle," and the proof disclosed that the pistol was loaded with at least two leaden balls the State's case must fail, because when the first shot was fired the only leaden ball alleged to be in the pistol had been discharged, and after this first fire...
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