The State v. Stewart
| Decision Date | 09 December 1922 |
| Citation | 246 S.W. 936,296 Mo. 12 |
| Parties | THE STATE v. ROBERT STEWART, Appellant |
| Court | Missouri Supreme Court |
Appeal from Pike Circuit Court. -- Hon. Edgar B. Woolfolk, Judge.
Affirmed.
Pearson & Pearson for appellant.
(1) The court erred in giving Instruction 11. First, because it is not predicated on any evidence given in this case. There was no evidence of any "improper attentions." Second because it emphasized, and rendered conspicious, for the consideration of the jury, an alleged or presumed fact concerning which there was no evidence whatever, and, in so doing, the jury might well have believed the court thought there was evidence tending to support the issue, while in fact there was none. Third, because it gave undue prominence to a particular matter, or fact, concerning which there was no evidence, and which ought not to have been brought to the special attention of the jury, by an instruction of the court. (a) An instruction not predicated on evidence is erroneous. There was no evidence upon which to base or support said instruction, and it should have been refused. State v. Hargrave, 188 Mo. 337, 350; State v Edwards, 203 Mo. 528, 539; Crow v. Houcks Mo. & Ark. Railroad, 212 Mo. 589, 604; Harrison v. Lathland, 189 Mo. 581, 608; State v. Allen, 116 Mo. 555; State v. Parker, 106 Mo. 225; State v. Herrill, 97 Mo. 111; Chambers v. Railroad Co., 111 Mo.App. 612. (b) Instructions singling out particular facts are erroneous. Specially is this true when there is no evidence of such alleged or presumed fact. Instruction eleven was an attempt, and had the effect, to emphasize and render conspicuous for the consideration of the jury, an alleged, or presumed, fact concerning which there was no testimony whatever. From this instruction the jury had a right to conclude, that the court believed there was evidence of "improper attentions." This was harmful error. Shanahan v. Transit Co., 109 Mo.App. 233; Imboden v. Union Trust, 111 Mo.App. 220, 243; Eckhart v. Transit Co., 190 Mo. 593, 620; State v. Hibler, 149 Mo. 478; State v. Jackson, 105 Mo. 196; State v. Williams, 136 Mo. 293, 308. (c) There was no evidence of "improper attentions" in this case, and, there was no claim made to or before the jury by the defendant, that "improper attention" would afford an excuse or justification for defendant shooting and killing the deceased. It was error for the court to call the jury's attention to a particular fact developed (or undeveloped) in the testimony, and direct the jury that it does not justify conviction. State v. Rafferty, 252 Mo. 72, 80; State v. Lewis, 264 Mo. 420, 432. (2) The motion for new trial should have been sustained, because there was a juror, that qualified, and sat on this panel, after he had been informed by a kinsman, that he was of kin to deceased. This information did not come to defendant, nor his attorneys, until after the verdict was rendered. The information that was given to the juror C. D. Sidwell that he was kin to deceased, was given to him by a kinsman, Weeden Sidwell, after he had been selected as one of the forty; and, before he had qualified as one of the twelve to try the case. It then became the juror's duty, if he did not know of the fact of kinship before, to divulge this information to the court, before he was selected as one of the twelve. Weeden Sidwell's knowledge and information was positive and direct. He knew the mother and father of the juror, and also of the deceased; he gave the names of each. Sec. 4011, R.S. 1919. It makes no difference, whether the juror knew for certain, whether he was of kin or not; after he received the information that he did from his kinsman, it was his duty to then inform the court in order that no chances be taken. The statute does not fix any degree of consanguinity or affinity, in a criminal case, within which a juror can serve. The statute absolutely prohibits a person of kin in any degree of consanguinity or affinity to serve as a juror in a criminal case.
Jesse W. Barrett, Attorney-General, and Henry Davis, Assistant Attorney-General, for respondent.
(1) The instructions given by the court were proper ones and covered the issues. State v. Harrod, 102 Mo. 597; State v. Harper, 149 Mo. 514, 523; State v. Hudspeth, 159 Mo. 178, 193; State v. Lewis, 264 Mo. 420, 430; State v. Gibbs, 186 S.W. 986. (a) The court did not err in refusing appellant's Instructions 7, 8 and 9. State v. Stewart, 278 Mo. 191. (b) The court fully instructed on all the law of the case and no exceptions were taken for a failure to more fully instruct. State v. Cook, 207 S.W. 831; State v. Wansong, 271 Mo. 51, 58; State v. Magruder, 219 S.W. 700. (2) This court is concluded by the finding of the trial court on a fact as to which the proof conflicts. State v. Brooks, 92 Mo. 542, 575; State v. Rasco, 239 Mo. 535, 584. The statute does not disqualify a relative of the deceased person from sitting on a jury trying the defendant for killing that person. Sec. 6632, R.S. 1919.
Tried for murder in the first degree for the killing of Walter Allison in Pike County on December 23, 1916, defendant was convicted of murder in the second degree and sentenced to a term of ten years in the penitentiary.
The case was here on former appeal. The opinion of the court thereon is reported in 278 Mo. 177. That trial resulted in a conviction of murder in the same degree and a like punishment was imposed. The facts stated in that opinion are practically identical with those in the case before us. There is, however, some difference in details.
The undisputed facts are that the deceased, Walter Allison, and the defendant were farmers living in the same neighborhood in Pike County. Defendant had a wife and five children. Deceased was single and about thirty-nine years of age. He was about six feet in height and weighed between 170 and 180 pounds, and apparently prided himself upon his strength. Some trouble had occurred between the two men over the conduct of deceased with defendant's wife. The testimony did not develop the nature of such relations, but defendant had objected to deceased's conduct and he testified that he asked deceased to cease visiting his wife or talking to her. It may safely be assumed that defendant thought deceased was paying improper attentions to his wife, or he doubtless would not have objected. Apparently the evidence on this point was more ample on the first trial than upon the last trial.
On the forenoon of the tragedy and shortly before twelve o'clock, the deceased and his nephew, Jarvie Allison, walked over from his home to the road nearby, where four rural mail boxes had been put up close together for the convenience of the rural carrier. One of these boxes belonged to deceased, and another to defendant. When deceased and his nephew arrived at the mail boxes, they found Mrs. Stewart, wife of defendant, and Ruby Stewart, his thirteen-year-old daughter there also. Some conversation ensued between deceased and Mrs. Stewart, in which she told him she was not supposed to speak to him. Defendant knew his wife had gone to the mail boxes to await the arrival of the mail for the purpose of transacting some business with the carrier. Defendant saw deceased and his nephew start toward the mail boxes. He thereupon secured a revolver and put it in his right coat pocket, and cut across a barn lot and approached them. Mrs. Stewart saw him coming, and said something about his coming and that there would be trouble. Upon his arrival defendant fired two shots, one of which took effect in deceased's leg and the other in his right side about the eleventh or twelfth rib. Allison died six days later as a result of said body wound. His dying declaration, tending to show the above facts and other facts sworn to by his nephew, was in evidence.
Jarvie Allison was the only witness on the part of the State who testified to the facts attending the killing. His testimony, outside of the undisputed facts above detailed, was that deceased was standing near his mail box where he had been counting some money to put in the mail box, probably with a letter, to be taken by the carrier. He had dropped his gloves in the road. When defendant approached, he said "Hey, Jarvie; Hey, Walter, God damn you," and immediately began firing at the deceased, just as deceased was in the act of picking up his gloves. As deceased fell he said, "Bob, you have killed me." Witness did not see any rocks where deceased was standing, and was certain he was picking up his gloves, and not a rock, at the time the shots were fired, and that deceased did not draw back to throw any rock at defendant.
Mrs. Stewart did not testify.
The testimony of defendant's daughter covered the undisputed facts, and also tended to show that when Mrs. Stewart told deceased her husband was coming, he said: "We will handle him;" that when defendant came up he spoke to the men and told deceased he had promised he would not speak to them and would shun them in a crowd. Deceased reached down and picked up a rock to throw at defendant, and said "that he would smash his God damn brains out." Deceased was left-handed and drew back his left hand to throw at defendant; that defendant then shot twice; that deceased's gloves were on the mail box and not lying in the road; that defendant did not use any curse words.
Defendant testified that he had a conversation with the deceased the day before the killing concerning his conduct with his wife in which he asked him to cease visiting his wife or talking to her; that when he approached deceased he said: "Hey Jarvie; Hey, Walter, what did you promise me yesterday?" That deceased started after a rock and said, "You God damn son of a bitch you, I will mash your God damn brains...
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