The State v. Zorn

Decision Date05 March 1907
Citation100 S.W. 591,202 Mo. 12
PartiesTHE STATE v. LOUIS ZORN, Appellant
CourtMissouri Supreme Court

Appeal from Jackson Criminal Court. -- Hon. Howard Gray, Special Judge.

Reversed and remanded.

Reed Yates, Mastin & Howell for appellant.

(1) The information is fatally defective, in this, that there is no direct charge that defendant did "discharge and shoot off, upon and against the deceased" the revolver described in the information. State v. Gleason, 172 Mo. 259; State v. Wilson, 172 Mo. 420; State v Gray, 172 Mo. 430; State v. Gregory, 178 Mo 48; State v. Reakey, 62 Mo. 40; State v. Fairlamb, 121 Mo. 137; State v. Hayes, 24 Mo. 358; State v. Hardwick, 2 Mo. 226; Jane v. State, 3 Mo. 61; State v. Ferguson, 152 Mo. 92. (2) The court erred in submitting the question of the competency of the dying declaration of deceased to the jury. The admissibility of a dying declaration in evidence and its competency as evidence are questions with which the jury has nothing to do. State v. Burns, 33 Mo. 483; State v. Johnson, 118 Mo. 504; State v. Sexton, 147 Mo. 102; State v. McCanon, 51 Mo. 160; Wharton on Criminal Evidence (9 Ed.), sec. 297; State v. Simon, 50 Mo. 370; State v. Johnson, 76 Mo. 124. (3) The court erred in giving instruction 4 of the first series of instructions, in improperly defining murder in the second degree. State v. Phelps, 76 Mo. 319; State v. Mitchell, 98 Mo. 657; State v. Elliott, 98 Mo. 150; State v. Evans, 124 Mo. 411; State v. Williamson, 16 Mo. 394; State v. Kotobsky, 74 Mo. 247. (4) The dying declaration should not have been admitted in evidence, as it does not appear that deceased thought that he was in extremis at the time he made the declaration, and it is shown by the testimony that he had not abandoned all hope of recovery. State v. Simon, 50 Mo. 370; State v. McCanon, 51 Mo. 160; State v. Draper, 65 Mo. 335; State v. Nelson, 101 Mo. 464; State v. Turlington, 102 Mo. 642; State v. Partlow, 90 Mo. 608; State v. Johnson, 118 Mo. 491. (5) The court erred in giving instruction 5 in the first series of instructions for the reason that there was no evidence in the case upon which to base such an instruction. Giving this instruction the court should have given the corollary thereof, that if deceased provoked and began the quarrel without a felonious intent, then he was not deprived of the right of self-defense. The defendant asked the court to instruct on all the law of the case. State v. Partlow, 90 Mo. 608; State v. Gilmore, 95 Mo. 554; State v. Forsythe, 89 Mo. 667; State v. Cable, 117 Mo. 384; State v. Lewis, 118 Mo. 84; State v. Evans, 128 Mo. 406; State v. Rapp, 142 Mo. 443; State v. Hopper, 142 Mo. 478. (6) The court erred in refusing to give defendant's instructions 8 and 11; if they were improper in form, the court should have given proper ones on the points suggested. Authorities cited under point 5; State v. Matthews, 20 Mo. 55; State v. Stonum, 62 Mo. 596; State v. Patrick, 107 Mo. 147; State v. Lowe, 93 Mo. 547; State v. Luke, 104 Mo. 563. (7) The court erred in permitting the prosecuting attorney to use improper language in his closing argument to the jury over the objection of defendant. State v. Pagets, 92 Mo. 300; State v. Woolard, 111 Mo. 248; State v. Lee, 66 Mo. 165; State v. Mobly, 68 Mo. 315; State v. Reed, 71 Mo. 200; State v. Ulrich, 110 Mo. 350; State v. Young, 99 Mo. 666; State v. Fisher, 124 Mo. 460; State v. Bobbst, 131 Mo. 328; State v. Jackson, 95 Mo. 623. (8) The separation of one of the jurors from his fellow jurors in the dining-room of the Ashland Hotel during the trial of the cause, and his conversation with a stranger in said dining-room, was sufficient cause for a new trial, and the court erred in overruling defendant's motion for a new trial on that ground. State v. Gray, 100 Mo. 523; State v. Murray, 91 Mo. 95; State v. Witten, 100 Mo. 525; State v. Schaeffer, 172 Mo. 335; State v. Orrick, 106 Mo. 111. (9) During the trial, defendant sought to make an objection to certain testimony then being offered by the State; the court refused to permit defendant in person to make any objections whatever. This was in direct violation of section 22, of the Bill of Rights of the Constitution, which guarantees to every person upon trial in a criminal case, the right to appear and defend both "in person and by counsel" -- and also in violation of a like provision of the U.S. Constitution.

Herbert S. Hadley, Attorney-General, and John Kennish, Assistant Attorney-General, for the State.

(1) The information is sufficient. In an indictment charging the crime of murder by shooting, the use of the word "with" in the clause descriptive of the weapon, to-wit, "and with a certain revolving pistol," though unnecessary, does not render the indictment invalid. State v. Turlington, 102 Mo. 651; State v. Wilson, 172 Mo. 428; State v. Gregory, 178 Mo. 56; R. S. 1899, sec. 2535. (2) Prejudicial error was not committed by the court in submitting to the jury in instruction 4 the question as to the competency of the dying declaration. When it is sought to offer in evidence a dying declaration in a case of homicide, it is the general practice to offer the preliminary proof as to the competency of such declaration to the court in the absence of the jury. However, the question as to whether or not the jury shall be excluded when the preliminary inquiry is made is "a matter resting in the sound discretion of the court." 4 Ency. of Evid., sec. 2, p. 951. In the case at bar, the court, in the absence of the jury, heard the evidence offered by the State as to the competency of the dying declaration. No evidence was offered by defendant on this preliminary inquiry, although informed by the court at the time that the court would permit him to introduce such evidence then or after the jury was returned into court. The dying declaration was offered in evidence over the objection of defendant. Thereafter, defendant offered evidence tending to prove that deceased was not in extremis at the time the dying declaration was made. In said instruction 4 the court declared the law upon the question of the dying declaration. This instruction not only declared the law as to the weight to be given to such testimony, but also required the jury to find the facts making such declaration competent in order that they might consider it as evidence in the case. 1. No objection was made by defendant at the time to the evidence offered by the State tending to prove the competency of the dying declaration, and, therefore, that question is not now before this court for review. 2. If said instruction 4 is subject to criticism, it is because it was too favorable to defendant. After the court had admitted the dying declaration in evidence, the State was entitled to have it considered as such by the jury (if the jury find it was in fact made by the deceased), without regard to the facts concerning the competency of such declaration. State v. Parker, 172 Mo. 203; State v. Van Sant, 80 Mo. 67; State v. Hendricks, 172 Mo. 670; State v. McCanon, 51 Mo. 160. If error was contained in said instruction 4, it was in submitting to the jury the question of the competency of said dying declaration, and, as such, being error committed in favor of the defendant, is not reversible. R. S. 1899, sec. 2535. (3) The court did not err in admitting in evidence the dying declaration of deceased. The preliminary proof clearly showed that deceased believed that he was in extremis when such declaration was made. State v. Craig, 190 Mo. 332; State v. Brown, 188 Mo. 451; State v. Nocton, 121 Mo. 527. Even though deceased may have entertained a hope of recovery after making the declaration, that fact would not render the declaration inadmissible in evidence. State v. Kilgore, 70 Mo. 553. (4) The court did not err in failing to instruct the jury on the defendant's right of imperfect self-defense, nor in giving instruction 5 on behalf of the State. Defendant's right to an instruction on the question of imperfect self-defense could only have been given upon the theory that he was guilty of manslaughter in the fourth degree, and as the defendant expressly objected to the giving of an instruction on that phase of the case, he cannot be heard to complain of an error committed at his instance. "Self-invited error cannot be made the basis for an assignment of error." State v. Cushenberry, 157 Mo. 182; State v. Keele, 105 Mo. 38; R. S. 1899, sec. 2535. (5) Error is assigned because of the action of the court in permitting the prosecuting attorney in his closing argument to argue to the jury as to the trespass of defendant on the premises occupied by deceased. While the entire closing argument of the prosecuting attorney is incorporated in the bill of exceptions, only such portions as were objected to at the time, and proper exceptions saved, can be reviewed in this court. Setting out the language objected to for the first time in the motion for a new trial is not sufficient. And if defendant's counsel went outside of the record in his argument, he cannot be heard to complain because the prosecuting attorney did likewise in replying thereto. State v. Hyland, 144 Mo. 302; State v. Summar, 143 Mo. 220; State v. Forsyth, 89 Mo. 667; State v. Gartrell, 171 Mo. 489; State v. Hibler, 149 Mo. 78; State v. Barrington, 198 Mo. 23.

OPINION

FOX, P. J.

This cause is brought to this court by appeal on the part of the defendant from a judgment of conviction of murder in the second degree in the criminal court of Jackson county Missouri. The information upon which this judgment is predicated was filed by the prosecuting attorney on the 19th day of December, 1903, in the criminal court of that county, charging the defendant, Louis Zorn, with murder in the first degree,...

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