The State v. Swearengin
| Decision Date | 06 December 1916 |
| Citation | 190 S.W. 268,269 Mo. 177 |
| Parties | THE STATE v. EVERETT SWEARENGIN, Appellant |
| Court | Missouri Supreme Court |
Appeal from Douglas Circuit Court. -- Hon. John T. Moore, Judge.
Reversed and remanded.
Fred Stewart and G. Purd Hays for appellant.
(1) The court erred in refusing to quash the information, as the same is vague, indefinite, does not intelligently inform the defendant of the nature of the charge against him, is not properly verified and charges no offense under the laws of Missouri. The phrase, "On purpose, and of his malice of aforethought," is not known to the law. State v Bonner, 178 Mo. 424; State v. Schnettler, 181 Mo. 173; State v. Meysenberg, 171 Mo. 1; State v. Keating, 202 Mo. 197. (2) The court erred in refusing to rule on the objections made by the defendant to the prejudice of the defendant. When called upon to pass on the rejection or admission of evidence it was the court's duty to rule. Morrison v. Turnbaugh, 192 Mo. 427; State v. Rothschild, 68 Mo. 52; State v Conway, 241 Mo. 271; Seafield v. Bohme, 169 Mo 546. (3) The court committed reversible error in permitting D. H. Narramore to testify about a fight or difficulty between defendant and Sarah Fitzgerald an hour or more before the fight between the defendant and Samuel O. Narramore, the deceased. It was a matter or difficulty not in any way connected with the defendant and deceased and could only prejudice the jury against the defendant. State v. Conway, 241 Mo. 271; State v. Clayton, 100 Mo. 615; State v. Parker, 96 Mo. 382. (4) The court committed reversible error in compelling the defendant to testify, over the objection of the defendant, to things not testified to in his examination in chief, things that happened away from the presence and hearing of the deceased, Samuel O. Narramore, and could not in any way shed any light on the killing or any issue in the case, and was prejudicial to the defendant. State v. McGraw, 74 Mo. 573; State v. Hawthorn, 166 Mo. 229; State v. Porter, 75 Mo. 171; R. S. 1909, sec. 5242; State v. Fullerton, 90 Mo.App. 411; State v. Chamberlain, 98 Mo. 129. (5) The court committed reversible error in giving instruction number 1, as said instruction told the jury it devolved upon the defendant to prove he was not guilty of murder in the second degree. It devolved upon the State to prove the defendant guilty beyond a reasonable doubt. State v. Helton, 234 Mo. 559; State v. Gentz, 184 Mo. 223; State v. Stubblefield, 239 Mo. 526.
John T. Barker, Attorney-General, and Kenneth C. Sears for the State.
(1) The information in this case is sufficient to sustain the judgment. Kelly's Criminal Law & Procedure (3 Ed.), sec. 474; State v. Banks, 118 Mo. 123; State v. Gregory, 178 Mo. 56; State v. Barker, 216 Mo. 543. (a) The word "of" before the word "aforethought" can be stricken out and a perfect information will be left. State v. Myers, 99 Mo. 114; State v. Miller, 156 Mo. 84. (b) The Statute of Jeofails cures an immaterial error. State v. Shelton, 223 Mo. 128. (2) The testimony as to the Fitzgerald affair was entirely proper as one of the circumstances leading up to the homicide. 1 Wigmore on Evidence, secs. 218, 365, 396; 5 Ibid., sec. 396; State v. Kennade, 121 Mo. 405; State v. Dettmer, 124 Mo. 426; State v. Hoffman, 78 Mo. 257; State v. Crawford, 115 Mo. 620; State v. Raper, 141 Mo. 327; State v. Nelson, 166 Mo. 191. (3) The cross-examination of the defendant does not constitute reversible error. State v. Avery, 113 Mo. 475; State v. Lewis, 118 Mo. 86; State v. Barrington, 198 Mo. 71; State v. Foley, 247 Mo. 635. Instruction number 1 has been approved by the later decisions of this court. State v. Evans, 124 Mo. 411; State v. Minor, 193 Mo. 597.
Defendant was tried in the circuit court of Douglas County upon an information charging murder in the first degree, for that, as it was averred, he had shot and killed one Samuel O. Narramore. Having been found guilty by the jury of murder in the second degree, and his punishment assessed at imprisonment in the penitentiary for a term of ten years, he has, after the usual motions, appealed.
Such of the facts as may tend to make clear the points which we will find necessary to consider in our opinion, run briefly thus:
On the 4th of July, 1914, there was a picnic at a place in Douglas County known as Johns Mills. To this picnic came, among others, defendant, halting a moment on his journey thither, at a place called Abadale, where he purchased some cartridges for his revolver. Shortly after defendant arrived on the picnic ground, upon some provocation not disclosed (and not pertinent to this case if disclosed), defendant got into a quarrel with a young woman, who seems to have either slapped defendant or struck him with an umbrella. Defendant in return for her blow, either slapped her or pushed her from him. This altercation with the young woman seems to have occurred some three hours before the time at which deceased was killed. At a time shortly after the altercation with the young woman, deceased met defendant and after some words, seemingly growing out of defendant's altercation with the young woman (though the record cannot be said to be clear upon this point), defendant applied to deceased an epithet a little more vulgar and obscene than is conventional, even in cases of homicide committed by drunk men at picnics. Thereafter defendant and deceased seem to have parted without any further hostilities occurring. After this initial altercation and some little time before the homicide, deceased, it is said, went to one John Hide, a witness in the case, and made inquiry of Hide where he could obtain a weapon. Hide directed him to the coat of the witness, which was either tied to, or hanging upon a saddle, in the pocket of which there was a pair of metal knucks. Deceased seems to have gotten these knucks, at least the witness testified that shortly afterward the knucks were gone from the pocket of the coat.
Subsequent to this and apparently shortly after the noon hour, defendant and deceased met at the picnic grounds and the shooting occurred. The testimony is conflicting as to whether defendant on this occasion first accosted deceased, or deceased accosted the defendant. The testimony for the State leaves this matter in doubt; while the testimony for the defendant is that deceased came to defendant on the picnic grounds and inquired of him whether he meant what he had said to deceased in the previous encounter, above mentioned. Being advised by defendant that the latter did mean it, deceased, applying the conventional opprobrious epithet to defendant, struck at him with a pair of knucks, and instantly defendant drew his pistol and shot deceased.
Upon this phase of the case, and as to what happened at a time instantly before the shooting, the testimony of the State tends to show that defendant applied an opprobrious epithet to deceased and the latter replied, "I will be damned if I will take it," and either struck defendant upon the head, or struck at him without hitting him, and defendant instantly shot deceased. The witnesses for the State say that the shooting by defendant and the striking of, or at, defendant by deceased, were simultaneous; that they could tell no difference between them; that "they were right together." Other evidence in the case on the part of the State shows that defendant partially drew his pistol from his pocket as he was entering into the last difficulty with deceased.
The defense is self-defense. Upon this phase there was some evidence to the effect that deceased, before he was shot by defendant, had, as stated above, armed himself with a pair of metal knucks, and that he struck defendant therewith, wounding him on the head and drawing blood, before defendant fired the fatal shot. Much conflict is to be found in the evidence touching whether the wound upon the defendant's head and the blood which flowed therefrom were caused by a blow from deceased, or were caused by an attack made on defendant by the mother of deceased with an umbrella shortly after the shooting.
Much testimony came in as to the metal knucks. It was shown without contradiction, that these knucks must have been gotten by deceased from the coat pocket of the witness Hide, and that they were found after the death of the deceased in the pocket of certain trousers which had belonged to the latter. That deceased either struck, or struck at defendant with a pair of knucks, or with his fist just before, or simultaneous with, the shooting by defendant, is abundantly shown by the evidence. The sole conflict lies in the questions of (a) whether deceased used a pair of knucks in his striking; (b) whether he actually hit defendant, or not; and (c) whether at the time he struck defendant, or struck at the latter, defendant was not already engaged in drawing his pistol. In other words, the questions which are troublesome and which were before the jury, are whether deceased acted, in doing what he did, to protect himself from a threatened assault by defendant with a pistol, or whether defendant, in doing what he did, acted to protect himself from a threatened assault by deceased with metal knucks. There is evidence on both sides of these questions. These were of course questions of fact for the jury. On them the jury has found against the defendant and in favor of the theory of the State. There is abundant evidence justifying this finding and so we need only consider in what we shall say, the alleged errors occurring upon the trial in the admission of testimony and in the giving of certain instructions which are challenged. These questions need not be set forth here, since we will sufficiently refer to them in connection with our...
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