The State v. Weagley
| Decision Date | 07 March 1921 |
| Parties | THE STATE v. JESSE WEAGLEY |
| Court | Missouri Supreme Court |
Appeal from Clay Circuit Court. -- Hon. Frank P. Divelbiss, Judge.
Affirmed.
Martin E. Lawson, Andrew Craven and Jacobs & Henderson for appellant.
(1) Under the testimony in this case, the defendant was guilty either of murder in the first degree or nothing. If defendant was sane at the time of the commission of the offense, he was guilty of murder in the first degree because every element of that crime was present. The court, without any testimony warranting it, gave an instruction on murder in the second degree and the defendant was convicted of murder in the second degree. This was error on the part of the court because there was no testimony warranting such an instruction, and its only result was to mislead the jury. The instructions should have been confined to the crime of murder in the first degree. State v. Pushon, 124 Mo. 457; State v. Alexander, 66 Mo. 148; State v Mahly, 68 Mo. 315; State v. Bobbst, 269 Mo 224. (2) The defendant offered to show the subpoenas and the grand jury records and the information showing that the defendant had been informed upon by the prosecuting attorney charging the defendant with murder in the first degree, and that the preliminary hearing had been had. The defendant's relatives, his father, mother, sisters and brothers, were forcibly brought before the grand jury and there required to testify under oath, and their testimony reduced to writing, which at the time of trial, was used by counsel to cross-examine the witnesses. Such acts on the part of the prosecutor and counsel for State, were highly improper, prejudicial and in violation of the rights of the defendant and contrary to law, and more particularly of Sec. 5078, R. S. 1909, wherein it is said that after the finding and returning of an indictment by a grand jury, no prosecuting attorney or foreman or jury, or in fact, any person, shall have the right to cause any subpoena or any process to reissue for any person who is known or believed by such foreman, prosecuting attorney or jury, to be a witness in behalf of the person or persons so indicted. (3) Instruction 8 given by the court is both erroneous and prejudicial to the rights of the defendant. (a) The court opened this instruction as follows: Insanity is interposed by "counsel of defendant as an excuse for the charge." The phraseology amounts in itself to an adverse comment upon defendant's defense, and the jury could not help but feel that the court by his words sought to discredit his defense. Instead of saying, as is invariably done in approved instructions, that defendant, by his counsel, interposed as a defense the defense of insanity, he says that insanity is interposed by counsel of defendant as an excuse. The court could not possibly have discovered a more prejudicial way to the defendant, of wording his instruction. (b) The instruction, in the light of the defense in this case, should have included in its description of the definition of insanity, the additional words that the defendant, due to mental derangement, was "incapable of exercising his will." State v. Kotovsky, 74 Mo. 248. In the case at bar, the defense includes an epileptic automatism during which the defendant moved about doing apparently logical things involuntarily. (4) Instruction 11, given by the court, is erroneous because it attempts to enumerate those things which the jury shall consider in arriving at a determination of the defendant's sanity or insanity, but it fails to set out certain elements relating to matters tending to throw light upon the defendant's mental condition and which were taken into consideration by medical testimony in passing upon his mental condition, but which are ignored in the instruction. For instance, while the instruction limits the jury in passing upon the mental condition of the defendant to a consideration of his life, habits, conduct and mental capacity, it ignores and takes out of this case and away from the jury the fact that the defendant had received a violent head injury from which he was unconscious for two hours, and which was commented upon and taken into consideration by medical testimony in arriving at his mental condition, and which experts said might cut a tremendous figure, especially when taken into consideration with defendant's predisposition to a nervous disorder. It also ignores and by that fact takes away from the jury, since they are specifically told things they shall consider in arriving at the mental condition of the defendant, the fact that in the summer, preceding the homicide, the defendant was overcome by heat from which he was delirious and for which he required the services of a physician. This fact was taken into consideration by the experts and because of its effect upon defendant's nervous organism was considered in arriving at his mental condition, the experts saying that it might have a serious effect upon his mind, particularly in view of his predisposition to nervous trouble. Both these matters were testified to by lay witnesses and were a part of the hypothetical question propounded by defense to its experts.
Frank W. McAllister, Attorney-General, and Henry B. Hunt, Assistant Attorney-General, for respondent.
(1) There was evidence tending to show that appellant killed deceased while angry. This evidence warranted the trial court in giving to the jury an instruction on murder in the second degree. 21 Cyc. 1067; State v. Wieners, 66 Mo. 24; State v. Marsh, 171 Mo. 528; State v. Robertson, 178 Mo. 505. (a) A verdict will not be disturbed because the evidence shows the appellant to be guilty of a higher degree of the offense than that of which he was convicted. Secs. 4903, 5115, R. S. 1909; State v. Berkley, 109 Mo. 675; State v. Frazier, 137 Mo. 340; State v. McMullin, 170 Mo. 630; State v. West, 202 Mo. 138; State v. Bobbitt, 215 Mo. 38; State v. Whitsett, 232 Mo. 522; State v. Barnes, 204 S.W. 266. (b) Having been convicted of murder in the second degree, appellant cannot complain that he was not convicted of murder in the first degree. Sec. 5115, R. S. 1909; State v. Bell, 136 Mo. 124; State v. Billings, 140 Mo. 205; State v. Todd, 194 Mo. 394; State v. West, 202 Mo. 139; State v. Sebastian, 215 Mo. 79. (2) Instruction No. 8, on insanity, is correct in form and substance. State v. Pagels, 92 Mo. 314; State v. Schaefer, 116 Mo. 109; State v. Duestrow, 137 Mo. 69, 88; State v. Holloway, 156 Mo. 228; State v. Paulsgrove, 203 Mo. 200; State v. Porter, 213 Mo. 55. (a) Said instruction is not erroneous because it contains the following language: "Insanity is interposed by the counsel of the defendant, as an excuse for the charge set forth in the indictment." Kelly's Crim. Law, sec. 40; State v. Pagels, 92 Mo. 309; State v. Lewis, 136 Mo. 91; State v. Holloway, 156 Mo. 230; State v. Paulsgrove, 203 Mo. 205; State v. Speyer, 207 Mo. 555. (b) Said instruction is not erroneous because it does not mention the expert testimony. Instruction No. 12 covered the question of expert testimony. Instructions must be read as a whole. State v. Crane, 202 Mo. 84; State v. Shout, 263 Mo. 375; State v. Finkelstein, 213 S.W. 468. (c) Said instruction is not erroneous because it does not include the question as to whether appellant was "incapable of exercising his will." State v. Rose, 271 Mo. 27; State v. Pagels, 92 Mo. 317; State v. Erb, 74 Mo. 203; State v. Turlington, 102 Mo. 654; State v. Miller, 111 Mo. 551; State v. Paulsgrove, 203 Mo. 205. (3) Instruction No. 11, on insanity, is sufficient in form and substance. State v. Paulsgrove, 203 Mo. 202; State v. Duestrow, 137 Mo. 88. (4) The trial court did not err in excluding from the evidence the Court records and the information first filed in this cause. Sec. 5078, R. S. 1909; State v. Faulkner, 175 Mo. 604.
OPINION
The appellant was charged by indictment in the Circuit Court of Clay County with murder in the first degree. Upon a trial he was convicted of murder in the second degree, and his punishment assessed at twenty years' imprisonment in the penitentiary. From this judgment he appeals.
Appellant a young man about 24 years of age, resided with his parents on a farm in Clay County. In the same neighborhood lived a Miss Clements. She and the appellant had been sweethearts for a number of years, and until the day of the tragedy they had been engaged to be married. On that day he received a letter from her terminating the engagement on the ground of parental opposition. His attitude and actions upon the receipt of her letter are thus graphically detailed by his counsel: "As he sat at the table after reading the letter his face was excessively pale; apparently he could not eat; his eyes had about them an unseeing look and he sat staring at the table." He arose and went upstairs where, it was afterwards discovered, he procured a loaded pistol belonging to a farm hand; going to the barn he saddled and mounted a horse and rode away. Soon thereafter he rode into the yard at the Clements' home and hallooed. Miss Clements and her mother were sitting by a window and, hearing his call, the former went to the door and asked if he desired to see her. In his usual manner he answered, "Yep." He had formerly thus conducted himself and there was otherwise nothing unusual in his manner or actions. Miss Clements went upstairs, got a ring box evidently containing the ring he had given her, put on her cloak and went out to meet him. He had dismounted and was waiting for her further back in the yard. She approached him and handed him the ring box. He caught her by the wrist, put the ring box in his pocket, and drew the revolver, which she grasped and screamed for help. ...
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