The State v. Robinett

• Decision Date: 26 February 1926
• Docket Number: 26199
• Citation: 281 S.W. 29,312 Mo. 635
• Parties: THE STATE v. W. M. ROBINETT, Appellant
• Court: Missouri Supreme Court

281 S.W. 29

312 Mo. 635

THE STATE v. W. M. ROBINETT, Appellant

No. 26199

Supreme Court of Missouri

February 26, 1926

Appeal from Butler Circuit Court; Hon. Almon Ing, Judge.

Affirmed.

John A. Gloriod and Lawrence E. Tedrick for appellant.

(1) The court should not single out detached and isolated portions of testimony and instruct thereon. State v. Rozell, 225 S.W. 931. Instruction 5 is clearly erroneous, because it tells the jury that certain things constitute no defense. Appellant claims that the shooting was done in self-defense and he is entitled to have the jury consider all facts, which might have a bearing, however slight, upon such questions and while appellant had no right to kill deceased because of abusive epithets used, yet the evidence that such were used may have had an important bearing when the jury came to consider the question of self-defense. State v Yates, 256 S.W. 809; State v. Adkins, 284 Mo 687. The court shall not on the trial of the issue in any criminal case, sum up or comment upon the evidence. Sec. 4038, R. S. 1919. (2) Instruction 6 ignores the threats that were communicated to appellant. The testimony of appellant shows that on several occasions deceased threatened to kill him and that said threats were made by deceased to appellant himself. State v. Cole, 263 S.W. 207. (3) The evidence shows that appellant's wife had been confined in the asylum on account of insanity and she was not used as a witness on account of her mental condition; hence the comment of prosecuting attorney was highly prejudicial to appellant and constitutes reversible error. Sec. 4037, R. S. 1919; State v. Shouse, 188 Mo. 473.

Robert W. Otto, Attorney-General, and J. Henry Caruthers, Assistant Attorney-General, for respondent.

(1) Appellant's complaint of the giving of Instruction 5, relating to vile epithets and abusive words, is without merit. State v. Gieseke, 209 Mo. 342; State v. Ballance, 207 Mo. 618. Said instruction is not a comment on the evidence, but a correct statement of the law. (2) Instruction 6 is not erroneous in view of the evidence. There is no evidence of threats made to third persons which were communicated to defendant, hence the ruling on this point in the Cole case does not apply. State v. Cole. 263 S.W. 210.

Walker, P. J. White, J., concurs; Blair, J., concurs in the result.

OPINION

WALKER

The defendant was charged in the Circuit Court of Butler County with murder in the first degree, found guilty of murder in the second degree and sentenced to the penitentiary for a term of fifty years, from which judgment he appeals.

The defendant shot and killed John Carter at the village of Oglesville, Butler County, on the morning of November 26, 1923. Carter went to the defendant's house and stopped at the front gate. A young man named Noah Miles accompanied Carter on an errand of his own. Robinett was on his front porch. Carter called to him saying: "Bill, come here I want to talk to you." Robinett stepped into his house, got his shotgun and came out, saying, "Get out of the way, Noah, I am going to shoot him." Defendant fired two shots, both of which struck Carter in the breast, inflicting fatal wounds from which he died in a few minutes. Miles ran into the house, saw the defendant reloading his gun and asked him not to shoot again, as he had already killed Carter. A search of Carter's body disclosed that he was unarmed. The defendant was arrested and signed a voluntary statement concerning the homicide which was read in evidence, but it is not set out in the bill of exceptions.

The statement by defendant's counsel is as follows:

"On a trial of the case defendant invoked a plea of self-defense and offered testimony tending to prove threats made against him by the deceased, which testimony showed that sometime previous to the killing deceased and defendant had some trouble over decased wanting defendant to work at a still and further trouble over insults offered to defendant's wife by deceased. Defendant testified 'that he had ordered deceased to stay away from his home and to stop making advances to his wife, who was partially insane, but deceased refused to do this and would go to defendant's home in his absence and persist in his advances' and when remonstrated with, deceased cursed defendant and on several occasions threatened to kill him.

"On the morning of the 26th day of November, 1923, deceased went to the home of defendant and, according to defendant's testimony, started in through the yard gate, calling to defendant to come out, cursing him and threatening to kill him. Defendant testified that 'from his actions, he believed deceased was drunk' and this is corroborated by the witness Luke, who testified that he 'smelled whiskey on decedent after he was shot.' Defendant testified that 'as deceased was advancing toward him, he reached for his hip pocket as if to draw a weapon and that he (defendant) picked up a shot gun and shot deceased, thinking that his life was in immediate danger."

I. The Attorney-General calls attention to the fact that the record fails to show an arraignment and plea. Section 3958, Revised Statutes 1919, contemplates that the defendant shall be arraigned and required to enter a plea. In State v. Braunschweig, 36 Mo. 397, 399, Judge Wagner said:

"Much of the common-law solemnity that was formerly used in the formal arraignment of those who stood indicted for crime is now dispensed with. There were reasons for an adherence to them which do not exist now. It was at one time necessary to ask him how he should be tried; but as the right to trial by battle never obtained with us, and the law has provided that every such issue shall be submitted to a jury of the country, as the exclusive triers of the fact, that question would be entirely meaningless. Our law does not demand that he shall formally and explicitly plead not guilty; if he requires a trial, or does not confess the indictment to be true, it is the duty of the court to enter a plea of not guilty, and proceed in the same manner as if he had formally pleaded. [2 R. C. 1856, sec. 5, p. 1181.] The defendant was present with his counsel when the jury was impaneled, waived the reading of the indictment, a plea of not guilty was entered of record, and we do not see how he can be injuriously affected because the arraignment was not made in a solemn, formal manner."

In State v. O'Kelley, 258 Mo. 345, 350, 167 S.W. 980, Roy, C., in a very interesting manner referred to some of the humane changes that have been introduced into our criminal procedure. Section 22 or our Bill of Rights reads:

"In criminal prosecutions the accused shall have the right to appear and defend, in person and by counsel; to demand the nature and cause of the accusation; to meet the witnesses against him face to face; to have process to compel the attendance of witnesses in his behalf; and to a speedy, public trial by an impartial jury of the county."

The enactment of these humane provisions wrought a revolution in criminal procedure. Monstrous as it may now seem, all these and other substantive rights were denied to the accused at common law. These rights, however, were fully accorded to the defendant in the case at bar. The information distinctly specified the offense with which he was charged he appeared in person and by counsel; he had process to compel the attendance of his witnesses; he had a speedy, public trial before an impartial jury of his county; he was permitted to testify in his own behalf, and he met the witnesses for the State face to face. There was a time when it was held in the absence of the plea of not guilty there was no issue joined; nothing to try; and in such case a conviction would be set aside. That theory, devoid of all semblance of merit, has been abandoned, at least in this State. The defendant went to trial without objection and contested the case made by the State...