The State v. Todd

• Decision Date: 06 March 1906
• Parties: THE STATE v. TODD, Appellant
• Court: Missouri Supreme Court

92 S.W. 674

194 Mo. 377

THE STATE v. TODD, Appellant

Supreme Court of Missouri, Division Two

March 6, 1906

Appeal from Vernon Circuit Court. -- Hon. H. C. Timmonds, Judge.

Affirmed.

A. J King, C. G. Burton and W. M. Williams for appellant.

(1) The remarks of the attorney for the State in his opening statement concerning the Claypool difficulty must have influenced the minds of the jurors. The subsequent direction of the court could not remedy the wrong that had already been done. State v. Jackson, 95 Mo. 652; State v Stubblefield, 157 Mo. 360; Evans v. Trenton, 112 Mo. 399; State v. Kennedy, 177 Mo. 116; State v. Kring, 67 Mo. 595; State v. Lee, 66 Mo. 167; State v. Shipley, 174 Mo. 512. (2) The conversation between witness Cox and deceased was not a part of the res gestae and was hearsay testimony. State v Kennedy, 177 Mo. 180; State v. Curtis, 70 Mo. 594; McMillan v. State, 13 Mo. 30; State v. Punshon, 124 Mo. 451; State v. Burrell, 145 Mo. 1; State v. Umfried, 76 Mo. 414; State v. Ware, 62 Mo. 597; State v. Evans, 65 Mo. 574; State v. Day, 100 Mo. 242. (3) To constitute murder in the second degree the killing of Wall must have been done while the defendant was in a heated state of the blood, as contra-distinguished from "deliberation" and technical "heat of passion," caused by some conduct on the part of Wall amounting to a "just provocation" and not to a "reasonable," "adequate," "sufficient," "lawful or legal" provocation. State v. Ellis, 74 Mo. 216; State v. Curtis, 70 Mo. 599; State v. Gee, 85 Mo. 649; State v. Niehaus, 188 Mo. 324; State v. Turlington, 102 Mo. 660; State v. Bulling, 105 Mo. 221; State v. McKinzie, 177 Mo. 711; State v. Berkley, 109 Mo. 673. (4) There was no testimony tending to prove murder in the second degree, and therefore instruction 5 was erroneous. State v. Mahley, 68 Mo. 315; State v. Phillips and Ross, 24 Mo. 490; State v. Niehaus, 188 Mo. 324; State v. Ellis, 74 Mo. 217; State v. Kotovsky, 74 Mo. 249; State v. Lewis, 74 Mo. 223; State v. Punshon, 124 Mo. 458; State v. Allen, 116 Mo. 548; State v. Curtis, 70 Mo. 599. (5) An assault on the part of deceased involving personal violence to the defendant or evincing an intent to do defendant bodily harm, is such a provocation as reduces the homicide to manslaughter. 21 Am. and Eng. Ency. Law (2 Ed.), 178, 173, 182; State v. Garrison, 147 Mo. 556; Stevenson v. U.S. 162 U.S. 313; Johnson v. State, 2 S.W. 609; 2 Bishop, New Crim. Law (8 Ed.), sec. 710; State v. Gee, 85 Mo. 647; State v. Elliott, 98 Mo. 157. (6) And it is a question for the jury to determine whether the killing was because of the provocation or from malice. Stevenson v. U.S. 162 U.S. 320; Wallace v. U.S. 162 U.S. 476; 21 Am. and Eng. Ency. Law (2 Ed.), 175; State v. Gee, 85 Mo. 647; State v. Elliott, 98 Mo. 157. (7) Upon the testimony the court should have given an instruction on manslaughter in the fourth degree. 21 Am. and Eng. Ency. Law (2 Ed.), 178, 173, 182, 175; Stevenson v. U.S. 162 U.S. 313; Johnson v. State, 2 S.W. 609; 2 Bishop, New Crim. Law (8 Ed.), sec. 710; Wallace v. U.S. 162 U.S. 476; State v. Garrison, 147 Mo. 556; State v. Weakley, 178 Mo. 423; State v. McKinzie, 177 Mo. 709; State v. Umfried, 76 Mo. 404; State v. McKinzie, 102 Mo. 632; State v. Edwards, 70 Mo. 600; State v. Berkley, 92 Mo. 54; State v. Curtis, 70 Mo. 600; State v. Gee, 85 Mo. 653; State v. Elliott, 98 Mo. 157.

Herbert S. Hadley, Attorney-General, and John Kennish, Assistant Attorney-General, for the State; Scott & Bowker and M. T. January of counsel.

(1) Evidence of the fight with Claypool just before defendant attempted to assault the deceased was admissible, and the court erred in defendant's favor in refusing to permit the State to show the same or make use of it in the opening statement to the jury. State v. Pennington, 124 Mo. 388; State v. Dettmer, 124 Mo. 426; State v. Nelson, 166 Mo. 191; State v. Bailey, 88 S.W. 733; State v. Raper, 141 Mo. 327; State v. Kennade, 121 Mo. 405; State v. Gabriel, 88 Mo. 631; State v. Williamson, 106 Mo. 162. (2) If there was any error in the prosecuting attorney making reference to this matter in his opening statement, it was cured by the action of the court thereon. State v. Degonia, 69 Mo. 485; State v. Howard, 118 Mo. 127; State v. McMullen, 170 Mo. 608; State v. Pennington, 124 Mo. 388. (3) If the defendant was not satisfied with the action of the court in regard to this action upon the remarks of the prosecuting attorney concerning the Claypool difficulty, he should have asked the court for a more pointed rebuke or instruction in regard to such matter and saved an exception to the court's action in refusing to give it. Otherwise, he can not complain of the court's action in said matter. State v. Howard, 118 Mo. 127; State v. McMullen, 170 Mo. 608. 1. The objection of counsel for appellant to the statement of the attorney for the State concerning the Claypool altercation was a general objection without assigning any specific reason therefor. The same rule should apply in such case as in the case of a general objection to the admission of evidence. State v. Harlan, 130 Mo. 381; State v. Hilsaback, 132 Mo. 348; State v. Wright, 134 Mo. 404; State v. McLaughlin, 149 Mo. 19; State v. Dent 170 Mo. 398. 2. Even if evidence of the Claypool altercation were incompetent, the statement of the attorney for the State concerning such difficulty would not be error of which appellant could complain, for the reason that counsel for appellant thereafter re-stated to the jury the facts concerning the same difficulty. (4) The attempt of defendant to assault Wall, the deceased, two hours before the actual killing, was a part of the res gestae of the killing, and the statement of Wall to Hubert Cox, while that difficulty was going on, was clearly admissible. 2 Bishop's New Crim. Pro., sec. 625; Underhill on Crim. Ev., secs. 99. 100; Wharton's Crim. Ev. (9 Ed.), sec. 262; State v. Nelson, 166 Mo. 191; State v. Gabriel, 88 Mo. 631; State v. Hudspeth, 159 Mo. 176; State v. Martin, 124 Mo. 514; Thomas v. State, 67 Ga. 460; Hunter v. State, 40 N. J. L. 495. (5) The evidence in this case warranted an instruction and conviction for murder in the second degree. State v. Ashcraft, 170 Mo. 409; State v. Elliott, 98 Mo. 350; State v. Atchley, 186 Mo. 174; State v. McMullen, 170 Mo. 609; State v. Hall, 168 Mo. 475; State v. Hudspeth, 150 Mo. 12; State v. Diller, 170 Mo. 1; State v. Sumpter, 153 Mo. 436; State v. Bell, 136 Mo. 120; State v. Frazier, 137 Mo. 317. (6) Even if the testimony only warranted a conviction of the defendant for murder in the first degree, or acquittal on the ground of self-defense, he could not complain of the court's action in giving an instruction for murder in the second degree. The verdict of the jury finding him guilty of murder in the second degree would have to be sustained, although the evidence showed him to be guilty of a higher degree. Sec. 2369, R. S. 1899; sec. 2535, R. S. 1899; State v. McMullen, 170 Mo. 609; State v. Hall, 168 Mo. 475; State v. Bulling, 105 Mo. 204; State v. Nelson, 88 Mo. 126; State v. Wagner, 78 Mo. 644; State v. Billings, 140 Mo. 193; State v. Kindred, 148 Mo. 270; State v. Bell, 136 Mo. 120; State v. Frazier, 137 Mo. 317. (7) The court did not err in failing to give an instruction for manslaughter under the evidence in this case. State v. Diller, 170 Mo. 1; State v. Ashcraft, 170 Mo. 409; State v. Kindred, 148 Mo. 270; State v. Sumpter, 153 Mo. 436; State v. Meadows, 156 Mo. 110; State v. Gartrell, 171 Mo. 489; State v. Martin, 124 Mo. 514; State v. Hall, 168 Mo. 475; State v. Atchley, 186 Mo. 174; State v. Brown, 64 Mo. 367. (8) Mere words or gestures, independent of any assault and battery, are not sufficient to reduce a homicide to manslaughter. State v. Brown, 64 Mo. 367; State v. Elliott, 90 Mo. 350; State v. Hudspeth, 150 Mo. 12; State v. Starr, 38 Mo. 270; 21 Am. and Eng. Ency. Law (2 Ed.), 182; State v. Gartrell, 171 Mo. 489; State v. Martin, 124 Mo. 514. (9) The instruction of the court for murder in the second degree was in proper form and has been approved by this court many times. State v. Bauerle, 145 Mo. 1; State v. Elliott, 98 Mo. 150; State v. Atchley, 186 Mo. 174; State v. Ashcraft, 170 Mo. 409; State v. Moxley, 102 Mo. 374; State v. Kinder, 184 Mo. 295.

OPINION

BURGESS, P. J.

On an information filed in the circuit court of Vernon county by the prosecuting attorney of said county, in which the defendant, Joseph B. Todd, is charged with murder in the first degree, for shooting and killing one Robert T. Wall at said county, defendant was convicted of murder in the second degree, and his punishment assessed at imprisonment in the penitentiary for a term of twelve years. In due time, after said conviction, defendant filed motions for new trial and in arrest, which were overruled, to which rulings of the court defendant duly excepted, and brings the case to this court by appeal for review.

The homicide occurred at Richards, a village of some two or three hundred inhabitants, in said county, on the 20th day of May 1904. There had been had feeling of long standing between the parties which seemed to increase as time passed, until an intense hatred grew up between them. They had one or two personal encounters as well as frequent quarrels, many threats were exchanged, and they frequently went armed, as if each was apprehensive of an assault upon him by the other. Defendant was especially vindictive, and at various times, in the presence of others, charged deceased with being dishonest, a scoundrel and a tax dodger. Charges of a similar character were also made by deceased against defendant. Several months before the killing, Wall acquired by purchase from one Claypool a tract of land about one mile north from...