State v. Linn

122 S.W. 679, 223 Mo. 98, 1909 Mo. LEXIS 39

Opinion

GANTT, P. J.

On the 29th day of June, 1908, the prosecuting attorney of Oregon county filed, in the circuit court of said county, an information, charging Ed. Linn and John Rodman with murder in the first degree. An application for change of venue, based on the alleged prejudice of Judge Evans, was filed by Linn, and sustained. The trial was set for September 1,1908, and Judge Fort was requested to try the cause. The defendant Linn was duly arraigned and pleaded not guilty. The jury was impaneled and sworn and, having heard the evidence, found the defendant guilty of murder in the second degree and fixed his punishment at twenty-four years in the penitentiary. Motions for new trial and in arrest of judgment were filed and overruled and the defendant sentenced in accordance with the verdict.

The evidence for the State tended to show the following state of facts:

On February 26th a wedding was in progress at the farmhouse of OcMey Nettles in Oregon county, Missouri. The house was occupied by a tenant named Morrow and was situated about one hundred yards from the residence of Ocldey Nettles, the deceased, on the same farm. About two o’clock in the afternoon of that day on which the killing occurred, the defendant appeared at his father’s house, procured a bottle of whisky, inquired for John Rodman, who was subsequently indicted as accessory, and immediately departed in search of him. On that afternoon, defendant and Rodman appeared at the home of Mrs. Mary Nettles in a somewhat intoxicated condition. Learning from Mrs. Nettles that a wedding was to occur at Morrow’s, they left the house and proceeded towards the latter’s place. Arriving at Morrow’s the defendant and Rodman did not enter the house, "but went around behind it and drank some whisky that they had brought with them. Seeing the deceased Nettles, they invited him to drink with them, and he did so. Defendant and Rodman then walked up the road with one Underwood and returned cursing and blackguarding, the defendant boasting of their ability to whip any one present. In the meantime, the deceased had returned to a position near the entrance of the house and was leaning against a post of a shed adjacent thereto. Defendant and Rodman approached the deceased, and Rod-man asked him if he had anything against him. Deceased replied that he had not. Defendant then put the same question and received a like reply. Deceased then asked Rodman if he (Rodman) had anything against him, and Rodman said he had not. Deceased then asked defendant a like question and defendant replied, “Yes, you ran over my father, and I am not going to take it,” and then with an oath said that the deceased could not treat him that way. Suiting the action to the word, defendant drew his knife and stepped in front of the deceased. He raised his knife, whereupon deceased stooped to pick up a stick, and as he did so, the defendant rushed in on him and dealt the fatal blow. At this juncture, the deceased either struck or struck at the defendant with a, stick, but apparently without effect. He then dropped the stick and grappled with the defendant, endeavoring to prevent the defendant cutting him further with the knife. They struggled for a short time until the deceased cried to a bystander “to take him off, he has killed me.” Rodman then seized the defendant and forced him from the deceased, who staggered by and behind the comer of the house. Defendant released himself from Rodman’s grasp, and saying, “I will kill him, Gr — d—him,” ran after the deceased. As deceased fell, defendant struck at him again with his knife. Returning from this second assault defendant said he “had cut him to the heart, Gr — d—him.” Defendant and Rodman then left the premises. The wound inflicted by the defendant upon the deceased practically severed the femoral artery in the left thigh, death resulting in a very short time from the loss of blood. There was also evidence that sometime prior to the killing, the defendant, in talking to one Baker concerning a difference between the deceased and the defendant’s father, had said “he was going to get right some of these days and go down there on him.” To the suggestion that the deceased might best him, defendant answered, “I will knife him.” To which Baker replied, defendant would be sent to the penitentiary, and defendant answered, “I do not give a d — .” On Monday, two days before the killing, defendant, while sharpening his knife, refused to swap it, saying, “I might want to kill a man with it. ’ ’ On the part of the defendant there was testimony to the effect that when defendant and Rodman returned to the house, just before the killing, they were talking pretty loud and ugly, and the deceased asked defendant to be quiet. Rodman then said to the deceased, “You can say what you please to the Linns and Rodmans behind their backs, but they are the stuff.” Deceased said: “You are not throwing that at me are you? I ain’t got nothing against you, I always thought a heap of you boys.” And defendant retorted; “Yes, but you run over an old man and by Gr— I will take up for him.” The defendant had clinched the deceased before the latter struck the former.

The defendant’s testimony corroborated that of the State as to the deceased’s efforts to avoid the knife in the struggle. Some of the defendant’s witnesses did not hear defendant and Rodman question the deceased' as to whether he had anything against them. They described defendant’s knife as a “deerfoot” knife with a blade about three and a half inches long.

A physician, who examined defendant in the jail sometime after he was in prison, testified that defendant’s right wrist was swollen as if he had received a blow upon it, and the jailer testified that soon after receiving the defendant at the jail, he observed a scratch on his neck and one on his right wrist. The flesh was not discolored.

The defendant testified in his own behalf that on the afternoon of February 26th, he went to his father’s house to get a note which had been drawn for Rodman to sign, the latter being indebted to him for a. small amount. That he procured the note and a bottle of whisky and met Rodman on his way home. Rodman importuned him to go with him to the wedding, suggesting that Rosenbaum and Hombuckle would be found there; that thereupon they proceeded to Mrs. Mary Nettles’, and from there went to the Morrows’. He then detailed the occurrences at Morrow’s very much as the State’s witnesses had done. His description of the killing was that immediately prior thereto he heard deceased ask Rodman if he had anything against him and Rodman said no, and Rodman then asked a like question and deceased slapped him on the shoulder and said, “I ain’t got nothing against old John and never did have.” Deceased then asked the defendant the same question, to which, defendant replied, “No, Ockley not a thing. You run over an old man once, but you cannot do me that way. If you do me that way I will whip you fair.” Deceased then said, “Don’t throw that old thing up to me,” and reached for a club', and when he did this, defendant rushed on him. He declared that the deceased struck him on the head and left wrist with a stick; that his knife was in his pocket at this time and during the struggle until deceased began choking him and attempting to “ride him down, and he seen that there was no show for him,” defendant drew his knife, opened it and “struck one lick at his body,” but did not know whether he hit him or not; that deceased seized his wrist and endeavored to cut him with the knife which he (defendant) still held; that some one then grabbed defendant and jerked them apart and slung defendant down hill. “And when I came to myself I was standing with the knife in my hand in front of John Rodman.” Defendant and Rodman then went to defendant’s father’s house and thence to the justice of the peace to whom defendant surrendered. Defendant identified the knife which he testified was the one with which he inflicted the fatal wound.

In rebuttal the State introduced evidence, tending to show that the knife exhibited by the defendant at the house of the justice of the peace, after his surrender, was not the one identified by him at the trial. That at Johnson’s, the justice, defendant displayed his right wrist and it was green all the way round; that there was no other indication of injury to it. Defendant then said: “He had stabbed the deceased first in the groin, and had ‘hacked’ him across the throat as they drew him loose.” Defendant was cool and collected, laughing and joking until about eight o’clock, when he went to sleep behind the stove. One witness testified that he attempted to open defendant’s knife with one hand, as Rodman stated defendant had done in the struggle with the deceased, but was unsuccessful. This was substantially all the evidence in the cause.

The court instructed the jury as to murder in the first degree, murder in the second degree, manslaughter in the fourth, and self-defense, to the giving of all of which instructions the defendant excepted. Defendant requested and the court refused certain instructions on the subject of self-defense and manslaughter in the fourth degree. To which action of the court the defendant saved his exceptions.

I. Defendant assails the information as insufficient to charge any offense, in that it fails to charge that the mortal wound was given the deceased by reason of the alleged assault with the knife. The language of the information in this connection is: “That one Ed Linn on or about the 26th day of February, 1908, at and in the county of Oregon and State of Missouri, in and upon one O. H. Nettles, then and there being feloniously, wilfully, deliberately, premeditatedly, and of his malice aforethought, did make an assault, and with a certain knife which he, the said Ed. Linn, in his right hand then and there had and held, him the said O. H. Nettles, feloniously, wilfully, deliberately, premeditatedly, and of his malice aforethought, did strike, stab and thrust in and upon the right side of the left thigh of him the said O. H. Nettles, giving to the said O. H. Nettles then and there with the knife aforesaid in and upon the right side of the left thigh, of him the said O. H. Nettles one mortal wound.of the length of two inches, of the breadth of one inch and of the depth of three inches, of which mortal wound the said O. H. Nettles then and there instantly died.” The indictment itself is a sufficient refutation of the charge made against it and contains the words which were omitted in State v. Williams, 184 Mo. 261, and State v. Birks, 199 Mo. 263, and the absence of which required the reversal of the judgment in those cases.

II. It is also assigned as error that the circuit court failed to define manslaughter in the fourth degree. As already said, the court had fully instructed on murder in the first degree and murder in the second degree, and then gave instruction numbered six in these words: “The court instructs the jury, That if the defendant brought on the difficulty, or entered into it with the intention of killing, or inflicting great per sonal injury, upon said O. H. Nettles, then the danger, if any, in which he found' himself during such difficulty would not extenuate his offense or reduce its grade at all; hut if he voluntarily brought it on or entered into it without any intent of killing or inflicting great personal injury upon said O. H. Nettles, and during such difficulty it became necessary for him to kill said O. H. Nettles, to save himself from being killed or receiving great personal injury, then he cannot be entirely excused on the ground of self-defense, but in that case you should find him guilty of manslaughter in the fourth degree. ’ ’

And in another instruction the court instructed the jury that if they should convict the defendant of manslaughter in the fourth degree they would assess his punishment at imprisonment in the penitentiary for two years or by imprisonment in the county jail for not less than six months or by a fine of not less than five hundred dollars, or by both a fine not less than one hundred dollars and imprisonment in the county jail not less than three months.

It appears from the record that the defendant requested this identical instruction of the court and requested no other instruction on the subject of manslaughter in the fourth degree, and saved no exceptions to the failure of the court to instruct more fully on that degree of offense. Under these circumstances, the defendant is in no attitude to complain that the court declared the law on the subject of manslaughter in the identical words requested by the defendant. Moreover this instruction is predicated upon the only state of facts under the evidence in this case which would have reduced the homicide to manslaughter in the fourth degree and the defendant had the full benefit thereof.

We think there was no reversible error because the court failed to define manslaughter any more fully than it did, especially as the jury did not find the defendant guilty' of that grade of offense.

III. On the subject of self-defense the court gave instruction number seven, in these words: ‘ ‘ The court instructs the jury that if you find and* believe from the evidence, that defendant had good reason to believe from the words, acts and conduct of the deceased, O. H. Nettles, that he had a design to do him (Linn) some great personal injury or bodily harm, and that such design was about to be accomplished, then defendant had a right to act on appearances, and to cut or stab said Nettles to prevent the accomplishment of such design, even though such cut or stab resulted in the death of said Nettles; and in this connection you are further instructed that defendant was not required to nicely gauge the force used, but that he could use any means that appeared reasonably necessary under the circumstances. Neither is it necessary that his danger should have been real or actual, or that it should have been impending and about to fall, but if he had reasonable cause to believe and did believe these facts and cut and stabbed the deceased to prevent such expected harm, then you must acquit him on the ground of self-defense.”

The court refused two instructions on the same subject requested by the defendant, but it is evident that the instruction above set out fully covered all the rights of the defendant and states the law as fully and favorably to defendant as he could ask, and as it has been repeatedly held that when such is the case, it is not error to refuse other instructions, even though they may be correct announcements of the law.

IV. Finally it is insisted that the misconduct of the jurors in the method employed by them in arriving at their verdict, is sufficient to justify a reversal of the judgment. In support of this assignment, the record shows that one of the defendant’s witnesses testified upon the hearing of a motion for new trial, that about a half or three-quarters of an hour after the verdict was returned and the jury discharged, he found in front of the judge’s desk and the jury box, a paper which he identified and offered in evidence, containing a column of twelve figures, ranging from 10 to 35, and twelve numbers had been added and the sum divided by twelve producing a quotient of twenty-four, this last number corresponding to the number of years at which the jury assessed the defendant’s punishment in the penitentiary. No other trial intervened between the return of the verdict in this case and the finding of this paper by the counsel. There was no other evidence offered on this head. There was nothing to indicate that these figures were in the handwriting of any member of the jury and absolutely nothing.to indicate that they agreed in advance to adopt as their verdict the quotient resulting from dividing by twelve the aggregate of the numbers set down on said exhibit. The offer to prove by this witness a statement of one of the jurors was properly refused. This court in State v. Underwood, 57 Mo. 40, laid down the rule that jurors speak through their verdict and cannot be allowed to violate secrets of the jury room and tell of any partiality or misconduct that transpired there, nor speak of methods which induced or operated to produce the verdict, and this has become the settled law of this State. [State v. Branstetter, 65 Mo. l. c. 156; State v. Coupenhaver, 39 Mo. 430; Sawyer v. Railroad, 37 Mo. 263.

The paper exhibit was utterly insufficient to establish any prior agreement by the jurors to be bound by the quotient verdict. Indeed the paper was not shown to have been an act of any member of the jury and it is clearly insufficient to overthrow the solemn verdict of the jury.

It results that the judgment and sentence of the circuit court must be and is affirmed.

Burgess and Fox, JJ., concur.