State v. Alexander

66 Mo. 148

• Court: Supreme Court of Missouri
• Decided: October 15, 1877
• Status: Published

Opinion

Henry, J.

— The subject of the burden of proof in criminal cases, and the propriety of giving for the State such an instruction as the fifth, in the case at bar, was fully discussed in The State v. Wingo, decided at this term. It was there held that such an instruction was erroneous, but in that and the cases cited to sustain the views expressed in that opinion, there was no instruction declaring to the jury that if they had a reasonable doubt of the defendant’s guilt, he was entitled to an acquittal; and while standing alone, the fifth instruction declaring that if defendant intentionally shot and killed Norrick with a shot gun, if the jury find that it was a deadly weapon, the law implies that the killing was malicious, and it devolves upon the defendant to show by the evidence to the reasonable satisfaction of the jury that the killing was justifiable, unless such justification appears from the evidence offered by the State, improperly casts the burden of proof upon the defendant, yet the fifteenth instruction,. giving him the benefit of a reasonable doubt of his guilt upon the whole case, gives it a different meaning, or rather so qualifies it as to make it conform to what we regard as the law of the case. If the evidence adduced by the defendant to show justification or excuse, was sufficient to create in the minds of the jury a reasonable doubt of his guilt, then that is substantially by the fifteenth instruction declared to be proving the justification to the reasonable satisfaction of the jury. ¥e would suggest that instead of 'declaring, as in the fifth instruction, the court, after stating as in that instruction the presumption of law from an intentional killing with a dangerous weapon, should instruct the jury that it devolves upon the defendant to adduce evidence to meet or repel that presumption. This, with a proper instruction as to a reasonable doubt, would clearly and fairly present the law to the jury.

In the sixteenth instruction the court declared that if defendant, without a design to effect death, in a heat of passion, did kill Norrick in a cruel and unusual manner, by shooting him with a shot-gun, they should find him guilty of manslaughter in the second degree. Frank Crook, a witness for the State, testified that defendant shot twice with a double barreled shot-gun; that defendant raised his gun and shot, and that deceased was about ten feet from Alexander. Eldridge Kyler, for the State, testified that defendant raised up his gun, deliberately took aim and fired. On that point there was no contradictory evidence. It was clearly shown that defendant, a few hours before the killing, emptied both barrels of the gun and loaded it with large shot, nor was there any evidence to contradict this. In his written opinion on the application of defendant to be admitted to bail, the judge who tried the cause correctly stated the law, as follows :

“ A man is taken to intend that which he does, or which is the necessary or immediate consequence of his act. To illustrate, if a man within shooting distance of another raises his gun, takes aim and fires, and the ball inflicts a mortal wound from which death ensues, the fair presumption is that he intended to kill his victim, and it so, the act is certainly murder, unless done in self-defense.” The case supposed by Mm to illustrate the principle is the very case here, and it is a little remarkable that the court having so clear a view of the law, should have given the sixteenth instruction. That defendant intended to kill Norrick, is beyond a doubt. In the case of The State v. Phillips, 24 Mo. 475, Scott, J., delivering the opinion of the court, said: “ It follows, then, that this was no case for an instruction as to the law of manslaughter in the second degi’ee, for there can be no doubt, unless we stultify ourselves and refuse to permit our judgments to be influenced by considerations which govern all the rest of mankind, that Sullivan Phillips intended to kill Watson.” Those remarks are equally applicable to this case, aud it was error to give the sixteenth instruction. And here it may be observed that defendant was found guilty of manslaughter in the second degree, the very degree in regard to which the improper instruction was given, of which crime there was not a particle of evidence to warrant his conviction. He was either guilty of murder in one of the degrees of which an intention to kill is an element, or the killing was justifiable.

Appellant complains of the thirteenth instruction given for the State, which declared to the jury “that if they found from the evidence that defendant sustained a good character for peace and order previous to the alleged offense, such good character may be taken into consideration in determining the question of his guilt or innocence, but if they believe, from all other evidence, facts and circumstances, that defendant was guilty, his good character could not be looked to as ground of-acquittal.” The meaning of this instruction is somewhat obscure. If it mean that if, considering all the evidence, that of good character included, the jury believed him guilty, they should not acquit because he had a good character, it is correct; but if it intended to assert that if all the other evidence proved the defendant guilty, the evidence of good character was not to be considered, then it is faulty.

The instruction was wholly unnecessary, for no one fit to sit on a jury would suppose that good character entitles an accused to acquittal, when, all the evidence considered, he is proven guilty. All the evidence permitted to go to a - jury by the court is for their consideration. The good character of the accused is an ingredient to be submitted to a jui’y like any other fact in the case. “I cannot, on principle,” said Mr. Justice Patterson, in U. S. v. Roudenbush, 1 Baldwin 514, “make any distinction between evidence of facts and evidence of character. The latter is equally laid before the jury as the former, as being relevant to the question of guilty or not guilty.” The admissibility of this evidence has sometimes been restricted to doubtful cases, but in .such cases the accused is entitled to an acquittal without regard to character and evidence of good character is offered to make a doubtful case. It is admissible in all cases, for it is not for the court to say that the case is a clear one. As the instruction is liable to misconstruction, we think it should be modified so as clearly to declare the principle which we think it was intended to announce, and which, as above indicated, is correct.

The court excluded evidence of threats made by deceased against defendant in the State of Kansas, about November 5th or 6th, preceding the homicide, and while defendant and deceased were driving the cattle to Missouri, in the division of which, on their arrival in Missouri, this difficulty originated. These threats were not communicated to defendant. There was evidence tending to show that deceased, at the time of the difficulty, which resulted in his death, first assaulted defendant with a knife. It is unlike the cases in this State in which it has been held that threats was inadmissible. In the State v. Hays, 23 Mo. 287, the defendant was the aggressor. No evidence tended to show that he was first assaulted by the deceased. So in the State v. Taylor, 64 Mo. 359. When there is evidence tending to show an assault first made by deceased, evidence of threats, made by the deceased, whether communicated to defendant or not, are admissible as bearing diréctly upon that important question, which the jury must determine before making their verdict

As was said by the court in tñe case of Campbell v. The People, 16 Ill. 17, “ If the deceased had made threats against the defendant, it would be a reasonable inference that he sought him for the purpose of executing those threats, and thus they would serve to characterize his conduct toward the prisoner at the time of their meeting and of the affray. Stokes v. People, 53 N. Y. 164. To the same effect is the case of The State v. Sloan, 47 Mo. 604. Evidence of threats in such cases is-not admissible -to justify the killing,'but as conducing to show that an assault was made by defendant, when there is other evidence tending to prove such assault. When there is no evidence that deceased made an assault, evidence of threats made by him is not admissible for any purpose. An idle threat, (and a threat which one does not attempt to carry out is to be regarded as an idle threat,) will not justify the threatened person in taking the life of him who made it. Hence, unless an attempt be made to execute the threat, evidence that it was made is wholly irrelevant and inadmissible.

The court committed no error in refusing the application for a change of venue. That a judge is prejudiced against a party cannot be predicated on a ruling in the cause against him. It was the- duty of the court to decide upon defendant’s application whether he should be admitted to bail, and in that preliminary proceeding his refusal to admit to bail is not to be regarded as prejudging his case. The refusing an application for a continuance might with equal propriety be held as proof that the judge was prejudiced against the party. Sustaining a demurrer to a plaintiff’s petition could also be alleged as ground for questioning the impartiality of the court, if appellant’s arguments be sound.

After the jury retired to consider of their verdict, one of their number sent a note to Judge Kelley, the circuit judge who presided at the trial, with the following inquiry : “ Will the law apply in this case as in dueling ?” The judge wrote on the note: “ see instructions 10, 11 -and 12,” and sent it by the bailiff to the jury. One of the jurors made an affidavit, on the part of defendant, in regard to a conversation had between him and the judge, while the jury were considering of their verdict, which we will not consider, since it is well settled that a juror will not be permitted to impeach the verdict of the jury by making an affidavit alleging their misconduct. But Geo. T. Bryan made an affidavit in which he stated that he heard a conversation between the judge and the juror Bennett, in which Judge Kelley asked Bennett to state what had transpired between them. Bennett said “that the judge asked him if they were likely to agree. Bennett told him they were not, that the jury stood too far apart, and the judge replied that he would like to have them agree upon a verdict if possible, and Bennett replied that there was no chance for agreeing upon a verdict except by a compromise.” The judge made no reply. In his affidavit, Judge Kelley admits that he had a converstion with Bennett, in which the latter told him “ that the jury could not make a verdict unless they could compromise,” and that he made no reply to the juror. It is further shown by the affidavit of W. S. Greenlee, that the judge, while the jury were out, said he intended to send for the foreman, and learn how the jury stood. And William Beakins, one of the bailiffs, who had charge of the jury, states in his affidavit that Judge Kelley, before he had the conversation with Bennett, inquired of affiant how the jury stood, and that affiant told him three were for acquittal and nine for conviction.

There can be no question as to the impropriety of the conduct of the court. His written directions to the jury, “ see instructions 10, 11 and 12his inquiries as to how the jury stood, and permitting a bailiff to tell him, without rebuke, that he had ascertained that three were for acquittal and nine for conviction; his silence, when the juror told him they could only agree by compromising, and all these private conversations held in the absence of the prisoner and his counsel, make out a case of misconduct on the part of the court, which it is to be hoped will not occur again. State v. Patterson, 45 Vt. 308. In Sargent v. Roberts, 1 Pick. 341, Parker, C. J., delivering the opinion of the court, said: “We are all of opinion, after consid- ' ering the question maturely, that no communication whatever ought to take place between the judge and the jury after the cause has been committed to them by the charge of the judge, unless in open court, and where practicable, in the presence of the counsel in the cause.” In Graham and Waterman on New Trials, Yol. -2, p. 360, it is said that “ the practice of the courts addressing private notes to the jury, cannot be sufficiently condemned.” But it is unnecessary to cite authorities to prove a proposition which at once commends itself to our sense of justice and fairness. The jury are the triers of the facts, and the court has no more right to interfere with them while considering of their verdict, except in open court, to discharge them from time to time, or in the presence of the accused and his counsel, to instruct them as to the law of the case, than the jury have to invade the province of the court.

Eor. the errors above indicated the judgment is reversed, and the cause remanded.

All concur, Norton, J., • and IIotjgh, J., in the result.

Reversed.