State v. Mace

170 S.W. 1105, 262 Mo. 143, 1914 Mo. LEXIS 151

• Court: Supreme Court of Missouri
• Decided: November 24, 1914
• Status: Published

Opinion

FARIS, J.

Defendant was tried in the circuit court of Miller county u.pon an information charging him with the violation of section 4481, Revised Statutes 1909, for that he had on purpose and of his malice aforethought shot one ITerod Williams, with a certain shotgun. Ho was convicted and his punishment fixed by the jury at imprisonment in the penitentiary for a term of two years; from the sentence which followed he has duly appealed.

The information upon which the conviction of defendant was had becomes pertinent for the reason that he challenges the sufficiency thereof. The attack upon the information is somewhat general, but in order to illustrate the point we append this information (caption and verification, both of which were in due form, omitted), as follows:

“Walter S. Stillwell, prosecuting attorney within and for the county of Miller, in the State of Missouri, under his oath of office informs the court that one Howell Mace on the 1st day of July, 1913, at the county of Miller, in- the State of Missouri, in and upon one Herod Williams, feloniously and on purpose and of his malice aforethought, did make an assault, and did then and there on purpose and of his malice aforethought feloniously shoot him the said Herod Williams, in and upon the head and neck of him, the said Herod Williams, with a cetrain shotgun which he the said Howell Mace then and there had and held in both his hands, with the intent then and there him, the said Herod Williams, on purpose and of his malice aforethought, feloniously to kill and murder, against the peace and dignity of the State.”

The facts, in the light of the points urged for reversal, are not particularly pertinent, but in order that some connected idea may be had as to these facts, which to a slight extent illuminate the discussion of the alleged errors, we append them:

The defendant Mace and the prosecuting witness Herod Williams were farmers, residing on adjoining farms, some three miles from the little village of Uhlman in Miller county. The farm occupied by defendant lies'north of that occupied by the prosecuting witness and is owned by defendant’s father, one John •Mace, who resides with him. A narrow lane, which it seems was only a few feet in width, runs between the two farms, which lane is fenced on either side by a single barbed wire. The house occupied by defendant and that occupied by the prosecuting witness were only some quarter of a mile apart and plainly in view from each other. Bad feeling had existed and divers other clashes had occurred between defendant and said Williams during a period of some two years.

On July 1,1913, the day of the shooting, the prosecuting witness was engaged in plowing a field of corn. At about tbe hour of nine o’clock in the morning of that clay he hitched his horse to a fence post and went to the house for the purpose of getting a drink of water. After getting this drink the prosecuting witness started back to his plowing and to the point where he had hitched his horse. About the time he got back near the place where he had been plowing he noticed, as he testifies, that a hen and a brood of chickens belonging to him, and which had been following his plow that morning, were over in a Stubblefield belonging to the Maces. In order to make them return to his premises he picked up a rock or clod, which he threw at the hen, and thus frightened her and caused her to come back upon the prosecuting witness’s side of the lane. Thereupon he turned toward his plowing and was in the act of unhitching the bridle rein of his horse from a post, to which he had tied it, for the purpose of again resuming his work, when he saw defendant running toward him from defendant’s house, carrying a gun, using profane and vile epithets and saying, “I will kill you this time.” The prosecuting witness tells us that he had not before on that morning seen defendant; that he had had no trouble with him or with any of his family that day and was at first in doubt as to whether the language of defendant was directed toward him. But as defendant continued to approach him, armed with a gun and in a threatening manner and upon his repeating the opprobrious epithet the prosecuting witness • asked defendant to stop and come no further. Upon defendant replying with an oath and continuing to come toward the prosecuting'witness the latter started toward his own house, meeting upon the way there his wife, who came toward him carrying a pistol. This pistol, the prosecuting witness testified, he asked his wife to give him, but she refused and the witness after a struggle with her, being unable to secure possession of the pistol, turned and went with her toward the fence where the horse was hitched and toward which point, as the context shows, the defendant was himself moving. An altercation then ensued between defendant on the one hand and the prosecuting witness and the latter’s wife on the other, in the course of which both the defendant and the prosecuting witness called one another liars and in which the defendant, according to the testimony of both Mrs. Williams and the prosecuting witness, applied to Mrs. Williams a very vile epithet. After some further altercation the defendant fired at Williams with the gun which he was carrying, which it seems was a 20-guage single-barreled shot gun loaded with number four shot, striking Williams in the forehead with a number of the pellets. Immediately thereupon the prosecuting witness called to his wife to shoot the defendant. Mrs. Williams began firing the revolver which she was carrying and continued to do so as rapidly as she could pull the trigger till she had fired five shots and emptied the weapon. Defendant then came up closer to Williams and his wife and firing with the gun at Mrs. Williams shot her in the wrist and left breast. The prosecuting witness picked up a rock, which he threw at the defendant while defendant was reloading his gun and then turned, as he says, to assist his wife, who was seriously wounded, in getting ba,ck to the house. As he turned his head and back to the defendant the latter again fired and shot the prosecuting witness in the back of the head, causing the latter to fall. From these shots the prosecuting witness was confined to his room for some week or ten days, recovering finally, and apparently fully.

The state of facts above briefly set out are taken largely from the testimony of the prosecuting witness, who is, however, corroborated by his wife. The testimony of the defendant, his wife and his father tends to prove that the defendant acted in self-defense; that he had procured the gun and started toward the scene of the difficulty for the purpose of protecting his father, at whom the prosecuting witness was throwing rocks. He further swears, and both his father and his wife corroborate him, that the shooting was begun by Mrs. Williams and that she had twice fired the revolver at him before he fired a shot at either her or the prosecuting witness. We need not concern ourselves with this, however, since this conflict in the evidence has been resolved by the triers of fact against defendant and is no longer a debatable question here.

Upon the trial of the case objection was made to the competency as a juror of one John S-. Lumpkin, who was chosen as one of the panel of twenty-four, but was not upon the panel of twelve who actually tried defendant.

Likewise after the. trial the competency of one' Peach Wall, who was a member of the panel of twelve who actually tried defendant, was attacked in the motion for a new trial and this attack was attempted to be backed up by the affidavit of one Mrs. Janie Thomas. This -affidavit becomes pertinent and is as follows, omitting caption, signature and jurat:

“Mrs. Janie Thomas, of lawful age, being first sworn, on her oath says that on or about the —— day of-, 1913, and within a few days after an alleged assault by one Howell Mace upon Mr. Williams in Miller county, Mo., that at Faith, in Miller county, Mo., she was in the store building of James Wall, where there were a number of people gathered together discussing the case of State of Missouri v. Howell Mace, charged with assault on said Williams and his wife, that one Peach Wall was also present, and in discussing said case the said Peach Wall, being the same person who was'on the jury in the trial of said case in circuit court of Miller county, Missouri, expressed his opinion in said cause as to what should be did at the trial thereof by saying in referring to Howell Mace, the defendant, that £a fellow like that’ (meaning Howell Mace, the defendant) ‘ought to be sent to the penitentiary. ’ ’ ’

Counter-affidavits were filed.by the State; one by Wall, the juror whose competency was attacked, in fair effect denying the truth of Mrs. Thomas’s affidavit, and one by the prosecuting attorney Stillwell, touching the facts which transpired upon the voir dire examination of said Wall. The affidavit of Wall, caption, signature and jurat omitted, is as follows:

“Peach Wall, of lawful age, being first duly sworn, says that he remembers being present in the store of James Wall at Faith, Miller county, Mo., within a very short time after the shooting of Mr. and Mrs. Herod Williams by Howell Mace, at which time there were a number of men present; that words had just been received by them over the telephone that Mrs. Herod Williams was either dead or dying and that Mr. Williams was fatally injured as a result of the shooting, but that the report at that time was that John Mace did the shooting’; that affiant left the county about that time and it was several days afterwards before he found out that Howell 'Mace did the shooting; that there were some expressions made by those present to the effect that a person who was guilty of an act of that kind should be in the penitentiary, but this affiant states that he has no recollection whatever of having made such an expression or statement himself, but that if he did make such an expression it was based on the report which had just been received as aforesaid.

“Affiant says that he remembers there were several persons present at said time and place and engaging in the conversation regarding said shooting, and that some expressions were made as above, but affiant states the fact to be that at no time and place prior to the trial of the case of the State of Missouri v. Howell Mace in the circuit court of said county did he make the expression or statement that the defendant was gnilty of the crime charged and that if he made any expression at all at the time and place aforesaid it was to the effect that if a person was guilty of such an act he should be in the penitentiary.

“And further affiant saith not.”

The affidavit of Stillwell, the prosecuting attorney, in substance states that upon the voir dire examination of said Wall the latter stated upon his oath in the presence of defendant and of the latter’s counsel, that he (Wall) had had a conversation with the brother-in-law of the prosecuting witness but that he (the juror) had not formed or expressed any opinion as to defendant’s guilt or innocence; that the juror was thereupon examined touching the condition of his mind as to bias and prejudice and as to the opinion, if any, which the juror had expressed in the conversation aforesaid. He denied having either bias or prejudice, or having any opinion as to defendant’s guilt or innocence. These three affidavits for and against the alleged bias of the juror Wall comprised all of the proof offered upon this phase. The learned trial court held that no. sufficient prejudice or bias was shown, and overruled this assignment of error.

The three points mentioned, that is to say, the alleged insufficiency of the information and the alleged incompetence of the jurors Wall and Lumpkin are the only points made by the defendant. To the discussion of these the appended opinion is directed.

OPINION.

Information: Felonios Intent. I. The first point urged by defendant’s learned counsel as a reason for reversal is that the information is bad. We have set it out in full in the statement, except the caption and verification, which are proper form. Defendant’s only specific attack upon this- information is that it does not charge that the assault upon the prosecuting witness Williams was made with a felonious intent. Even a casual examination of this information discloses that defendant is in error as to this. After alleging that the assault was made feloniously; that the shooting and striking were done feloniously, the information concludes by charging’ that the assault and shooting were clone “with the intent then and there, him the said Herod Williams on pu-rpose and of his malice aforethought, feloniously to MU and murder.” This is sufficient and the information is a good charge for an assault with intent to kill perpetrated by means of a firearm (Kelley’s Crim. Law & Prac. 576; State v. Bond, 191 Mo. 555; State v. Doyle, 107 Mo. 36), the dangerous and deadly nature of which we know and judicially notice. The distinction to be observed in drawing an information under said section 4481, when the lethal weapon is a rock, club or some other weapon, the dangerous and deadly nature of which courts do not judicially notice, is obvious and is fairly well 'disclosed by the very language of the section in question. We are forced to disallow this contention.

Juror: Competency. II. The next contention is that the juror Lump-kin was incompetent. This juror’s name does not appear on the trial panel of twelve, so he must have been on the original. venire of twenty-four have been challenged off by either the State or the defendant. We pretermit the discussion of how far this fact of itself might minimize the alleged error, since upon this, record we need express no opinion on the above suggested phase.

The record discloses that this juror did not personally know the defendant; that he was in some doubt as to whether he knew Williams; that he had read some newspaper accounts of this assault, from which sole source he had formed an opinion as to the guilt or innocence of defendant, which opinion he still had and which was of snch character as to require some sworn testimony for its removal. He said, however, that he would be governed by the sworn testimony. Thereupon counsel for defendant objected to the retention of this juror thus: “The defendant’s cownsel objects to the juror, challenges him for can,se.”

Thereafter, counsel for the State undertook to compel a qualification of the juror and at the end got him to say that “he thought he was capable of laying aside and would lay aside the opinion which he now had and be governed by the sworn testimony alone.”

We need not take the time to consider whether the juror was competent or not, since as clearly appears no proper objection, or rather no proper challenge for cause, was made to his competency. A challenge for cause must be specific and point out the ground or reason for the challenge. It is no more sufficient to object simply, or to say that the juror is challenged for cause, which is but a legal conclusion, than it is to object to the offer of inadmissible evidence, for that it is not competent. [State v. Fields, 234 Mo. 615; State v. Bobbitt, 215 Mo. 10; State v. Tucker, 232 Mo. 1; State v. Miles, 199 Mo. 530; State v. Myers, 198 Mo. 225; State v. McCarver, 194 Mo. 717; State v. Evans, 161 Mo. 95; State v. Soper, 148 Mo. 217; State v. Albright, 144 Mo. 638; State v. Dyer, 139 Mo. 199; State v. Reed, 137 Mo. 125; State v. Taylor, 134 Mo. 109.] It follows that this point is not well taken.

In passing we take the opportunity to say that the small trouble of telling an incompetent juror to stand aside and of calling, ordinarily from the by-standers, a competent one to take his place, ought so lightly to weigh ag’ainst the hazard to the case of refusing to take this step, and against the ofttimes outrageous unfairness to a defendant on trial, mayhap for his life, that ordinarily neither the court nisi nor the State’s counsel, out of the abundance of caution and impartiality, should ever take so momentous a chance. But for most unaccountable reasons, we have long observed that in a great majority of cases the moment the defense undertakes to disqualify a juror the State (aided more often than necessary by the trial court) rushes to the juror’s relief as if the particular juror were Atlas and the world rested on him. It is no reflection on the trial court or on the State’s attorney to have counsel for defendant disqualify a proposed juror; it is more often a reflection on both judge and counsel when they refuse to permit it. With the world absolutely filled with competent, unbiased and unprejudiced jurors, error in this behalf is usually gratuitous and unnecessary, a few notorious causes celebres excepted.

Juror: Prejudice. III. Complaint is likewise made that one Wall, who was on the trial panel of twelve, was a prejudiced and incompetent juror and one who had before the trial both formed and expressed an opinion of defendant’s guilt.

We set out the affidavits bearing pro and con upon this juror’s alleged incompetence. A reference to the statement of facts as we set them out, shows that the affidavit of Mrs. Janie Thomas was filed in support of the allegation of Wall’s 'bias, in which affidavit it was charged that “said Peach Wall being the same person who was on the jury in the trial of said case, expressed his opinion in said cause as to what should be did [sic] at the trial thereof by saying in reference to Howell Mace, the defendant, that ‘a fellow like that’ (meaning Howell Mace, the defendant) ‘ought to be sent to the penitentiary.’ ” In opposition to the charge contained in the affidavit of Mrs. Thomas, the affidavit of said juror Wall was filed, which affidavit we likewise set out. Reference to it discloses that in fair substance Wall says that while at the place mentioned by Mrs. Thomas in her affidavit, he heard from a conversation over the telephone that John Mace had shot both Mr. and Mrs. Herod Williams; that the former was dying and the latter fatally wounded; that affiant (the juror Wall) shortly after this left the country temporarily and did not for a number of days thereafter learn that defendant Howell Mace did the shooting; that other persons present expressed the opinion that a person who was guilty of an act such as was detailed over the telephone ought to be in the penitentiary, but that affiant has no recollection of having made any such remark himself, but if he did so, it was based on the telephone report aforesaid; that at no time or place prior to the trial of defendant did affiant make the statement that defendant was guilty of the crime charged, but that whatever he may have said was to the effect that if a person was guilty of such an act he should be in the penitentiary. It further appears that upon his voir dire this juror swore he had formed no opinion. Upon this state of the proof touching bias the learned trial court ruléd against the defendant and overruled the assignment of alleged error based upon the juror’s alleged incompetence. Was this error?

It appears in a reasonably clear way when we analyze fairly what the juror Wall swears he said, that his bias and the views he expressed were not against the defendant at all, but that he entertained strong prejudice against the crime committed, by whomsoever committed, the report whereof had come to him without, details over the telephone. His animosities were impersonal, directed toward that which telephone rumor characterized as a most heinous offense, and not toward defendant himself at all. In fact he did not learn that defendant did the shooting till some days after the alleged statements are said to have been made. In such state of things what was said in State v. Sykes, 191 Mo. l. c. 76, is appropriate:

“It is true some of them said they were prejudiced against this kind of case or crime, but not against a man charged with such crime before being proven guilty. It was held in State v. Bryant, 93 Mo. 273, and in State v. Williamson, 106 Mo. 162, that persons who have formed opinions of the guilt of an accused upon trial for crime, from rumor or newspaper reports, are not for that reason rendered incompetent to sit as jurors on the trial of the case, where they answer upon their voir dire that they can give the defendant a fair and impartial trial. [State v. Duffy, 124 Mo. 1.] A juror who states on his voir dire examination that he has formed and expressed an opinion as to the guilt or innocence of the accused and that the opinion has been formed from rumor or newspaper reports, and it will require evidence to remove it, is not incompetent, provided it appears to the satisfaction of the court that such opinion will readily yield to the evidence in the case and that the juror will determine the issues upon the evidence adduced in court, free from bias. It is said in State v. Cunningham, 100 Mo. 382, that all doubts should be resolved in favor of the finding of the trial court, and the question of the qualification of the juror must be determined from his whole examination, including his demeanor while answering questions under oath touching his qualifications as a juror. ’ ’

We abate not one jot or tittle from the rule laid down in State v. Gonce, 87 Mo. l. c. 630, that “it is settled law in this State that it is a good ground for a new trial when a juror on his voir dire examination has stated that he has neither formed nor expressed an opinion as to the guilt or innocence of the accused, and after verdict it comes to the knowledge of the accused that such juror had prejudged the case, and that fact, is made to appear to the satisfaction of the court. In such cases the question as to whether the juror had prejudged, the case is one of fact to be determined by the trial judge, as any other question of fact on sworn statements.” We are nevertheless of the opinion, the source of the rumor considered, the doubt whether the remark was made at all or not, and the doubt of its applicability to defendant, or to a general but commendable detestation of heinous crimes, that we ought to defer to the finding of the learned trial court. [Morgan v. Ross, 74 Mo. 318; State v. Cook, 84 Mo. 40; State v. Gonce, supra.] This we do and disallow this contention.

Finding no other error properly preserved, we are of opinion that the case should be affirmed. Let this be done.

Walker, P. J., and Brown, J., concur.