State v. Snow. circumstances. It is also true that it must be proved in some way, either by direct evidence or by facts and circumstances which sufficiently evidence its existence. Certain facts are by the statute made sufficient evidence of deliberation, but of none of these is there evidence in this case. There is no evidence of threats, former grudge or preparation. There is no evidence of previous hostility of defendant toward deceased. . There is not a circumstance in evidence which tends to prove anything more heinous than an intentional killing with a deadly weapon. This the law presumes to be murder in the second degree when nothing else appears. In order to make it first degree murder it was incumbent upon the State to offer evidence of deliberation." The rule so clearly stated above is abundantly supported by authority and applies to the facts shown in the instant case. [State v. Minor, 193 Mo. 597, 1. c. 608 and 609; State v. Young, 119 Mo. 495, 1. c. 524.] Assuming for the present that the poker used by defendant was a deadly weapon and that defendant intentionally struck the deceased therewith at a vital part of his body and killed him, this bare admission is not sufficient to prove that the killing was deliberate. The only scrap of evidence which might be said to tend to show deliberation is the remark of defendant as he came out of the door of his house after carrying deceased into said house, to-wit: "You son-of-a-bitch, you will not talk now." The blood in and on the automobile and the absence of any struggle in the house show almost conclusively that the fatal blow must have been struck before deceased was carried into the house. This remark was therefore made sometime after the blow was struck. Such a remark accompanying the delivery of the blow would tend to characterize the act and show the defendant struck in revenge for some previous wrong or in pursuance of a formed design to close the lips of the deceased. The fact that defendant carried deceased to his own house argues that he then had some hope of deceased's recovery and thought death had not yet oc State v. Snow. curred. The remark is more consistent with the infliction of the blow in sudden anger than it is with deliberation, when we consider that the deceased and the defendant had been close friends and no previous trouble was known to exist between them. If the blow was inflicted deliberately and with a design to cause death, it would seem the natural thing for defendant to do would have been to leave the body where the blow was inflicted or to endeavor to conceal it in some place which would not point to himself as the murderer. If defendant struck deceased in sudden anger and then carried him to his own house in the hope of reviving him, the remark attributed to him by witness Sweat, taken by itself, is not of such a character as to overcome the presumption of innocence of the graver crime of murder in the first degree. Nor is the State's case helped out if we assume that defendant carried the body to his house solely to conceal it there or to remove it elsewhere later. Such remark might be regarded as tending to prove a criminal intent, but not deliberation in the face of the presumption of innocence. Our conclusion is that the evidence of the State proved nothing more than murder in the second degree, assuming that the poker was a deadly weapon, and therefore that the giving of an instruction on murder in the first degree, was error. Since the defendant was convicted of murder in that degree, the error was clearly and necessarily prejudicial. Deadly II. We have proceeded thus far on the assumption that the poker with which defendant killed deceased was a dangerous and deadly weapon. If such poker was in fact a deadly weapon and defendant intentionally struck deceased therewith at a vital part, then the jury had the right from such facts to find that defendant made such assault with the intent to kill. If the poker was not in fact a deadly weapon or was not intentionally used in such manner as to make it a deadly weapon, then there is no evidence in this case of an intent to kill. State v. Snow. All that is shown is that there was a poker found in defendant's house. Whether or not it is the poker referred to by defendant in his admission to Snider, does not appear. In view of the blood found in and on the automobile and the want of marks of blood on the poker found in the kitchen and the absence of evidence of a struggle in the house, it is exceedingly unlikely that said poker was the one used by defendant. Assuming that it was the poker used, the record is as entirely silent as to its size or shape as it is in regard to the size or shape of any other poker defendant might have used. It is a matter of common knowledge that pokers vary in size and weight from the short and slender rods used as pokers in parlor stoves or the ordinary kitchen stove poker to the long and heavy pokers used about furnaces under powerful steam boilers. It was therefore error to assume that the poker used by defendant was a deadly weapon or that it was intentionally used by defendant as such. It may be conceded that in the hands of a strong man a short, light poker might be so used as to constitute a deadly weapon. With defendant's admission that he killed deceased with a poker and proof that death was caused by the use of some blunt instrument, the jury would have been warranted in finding that the poker was used by defendant in such manner as to be a deadly weapon, without proof of its actual character, and, if the jury found said poker as used was such deadly weapon and was intentionally used by defendant as such at a vital part of the body of deceased, they would have been justified in finding defendant intended to kill the deceased. [State v. Bowles, 146 Mo. l. c. 13; State v. Harris, 209 Mo. 1. c. 438; State v. Miller, 264 Mo. 1. c. 403.] If they so found then they would have been authorized to find defendant guilty of murder in the second degree, under the permissible indulgence of the presumption of intent to kill arising from the intentional use of a deadly weapon at a vital part, absent proof of other facts explaining and characterizing the acts and conduct of defendant. State v. Snow. It must be understood that we are here dealing solely with a presumption, and that we do not mean to hold that a conviction of murder in the first or second degree will not be justified in a case where the proof shows the actual intent of the assailant independent of any presumption arising from the intentional use of a deadly weapon at a vital part. In the case before us there is no proof whatever concerning the intent of the defendant, except the proof supplied by the indulgence of the presumption we are here discussing. Unless, under the proof, there can be no difference of opinion that the instrument of death was of a deadly character or that the instrument as used was intentionally used as a deadly weapon by the assailant, its character as such deadly weapon is one for the jury to determine under appropriate instructions. III. The jury should have been instructed on manslaughter. There was no evidence authorizing an instruction on murder in the first degree, as we have found above. If the jury, under appropriate instructions, did not find that the poker as used was a deadly weapon, then there was no evidence of murder in the second degree. Section 3236, Revised Statutes 1919, provides: Manslaughter. "Every killing of a human being by the act, procurement or culpable negligence of another, not herein declared to be murder or excusable or justifiable homicide, shall be deemed manslaughter." See State v. Gore, 292 Mo. 173, for a discussion of the effect of the 1919 amendment of the statute in relation to manslaughter. IV. Complaint is made of the action of the trial court in permitting witness George Sweat to testify after the defendant had put in his evidence and without his name having been indorsed upon the information. The propriety of such action need not be discussed here, because on a retrial such testimony will doubtless be put in as a part of the State's case in chief. Jacobs v. Cauthorn. V. Other complaints of error in the giving of instructions and admissions of testimony are urged by appellant, but they are of such a character that they will not likely occur on a retrial and this opinion need not be further lengthened in their consideration. For the errors pointed out, the judgment of the trial court is reversed and the cause remanded. All concur. F. P. JACOBS et al., Appellants, v. ROSS B. CAUTHORN et al. Division Two, March 18, 1922. 1. SCHOOLS: Increasing Tax Levy: Building and Repair Fund. The board of directors of a town school district have the authority, without a petition of ten taxpayers therefor, to submit to the annual meeting a proposition to increase the annual rate of taxation for repairing and furnishing school buildings under Section 11152, Revised Statutes 1919, and such proposition is to be determined by a majority of the votes cast thereon. 2. 3. : : Notice and Ballots. Where the notices of the annual school meeting to be held in April 6, 1920, were given March 13, 1920, and specified the following, among other things, to be considered, namely: "3. To vote twenty-five cents Building and Repair Fund;" and the ballots on such question used at the election were in the following form: "To vote twenty-five cents Building and Repair Fund," and "Against twenty-five cents Building and Repair Fund," such notice and ballots sufficiently complied with the law, as it did not appear that any one participating in such meeting was deceived by said notice or confused in the matter of casting an intelligent ballot. -: Limit of Taxation. Under Section 11 of Article 10 of the Constitution, a town school district cannot vote an annual rate for school purposes beyond the limit of one dollar on the one hundred dollars' valuation, and therefore a vote to levy, beyond said limit, an additional tax of twenty-five cents on the one hundred dollars valuation for repairing and furnishing school buildings under Section 11152, Revised Statutes 1919, was illegal and void. |