13 Mo. 30 | Mo. | 1850
Aaron McMillen and his three sons, John, James and Michael, were jointly indicted for the murder of Jackson Logsdon. They were tried separately. The appellant, Aaron McMillen, was fouud not guilty of murder as charged in the indictment, but guilty of manslaughter in the third degree, and sentenced to imprisonment in the penitentiary for three years.
All the testimony given on the trial is not preserved in the bill of exceptions, but enough is stated to show the important facts in the case. The tendency of the evidence on the part of the State, which came mainly from the brother of the deceased and a young man named Casey, who was associated with the
The defense rested almost entirely upon the evidence of the three McMillens, who were not upon trial; and the wife of the one who admitted himself to have shot the deceased. Their testimony tended to show that the Logsdons had sought the rencontre and that only two of their party were present at the commencement of the attack; and that these two were pursuing their usual vocations, the one having started on horseback on his way to carry the mail, and the other accompanying him on foot for the purpose of feeding some stock at a field cultivated by the family at some distance from the house. These two witnesses and co-defcndants were attacked by the Logsdons, and according to their statements, Jackson Logsdon was armed with a pistol and his brother with a rifle. John McMillen shot Jackson Logsdon, after he, Jackson, had presented a pistol at his breast, and Casey, the friend of the Logsdons, broke the skull of the deceased by a blow of his gun aimed at one of the McMillens. There was no testimony apart from the statements of these witnesses, that Jackson Logsdon had any pistol or other weapon.
It is unnecessary to notice the evidence more minutely, as the only errors assigned consist of the admission or exclusion of certain evidence offered on the trial. We have stated sufficient to show its general tendency on both sides.
1. John Logsdon, the principal witness for the State, testified, that there were unfriendly feelings between the defendant, Aaron McMillen and his brother, Jackson Logsdon ; and he further testified that there were unfriendly feelings between the other defendants and Jackson Logsdon, his brother. This evidence was objected to, but was admitted and an exception taken. As the tendency and object of this evidence was to establish malice on the part of the defendant and a participation in this feeling by all the co-defendants, it is difficult to see any objection to its introduction. The point however, is not urged, and we will therefore pass to the second exception.
2. The witness, John Logsdon, previous to the close of the evidence on the part of the State, was recalled and stated that four or five days before the affray, he and John McMillen had a fist fight. This was objected to. It will be observed that all the evidence is not preserved in the bill of exceptions. The only objection which could be urged to this testimony, would be its irrelevancy, but it is impossible for this court to see, from the record, whether this objection existed or not. Standing as it does in the bill of exceptions, isolated and disconnected with what preceded and succeeded it, its materiality is not very manifest. The fact testified to, may have been very important, in two points of view, first, for the purpose of corroborating the testimony previously given, in relation to the state of feeling between these two families, and secondly, with a view to elucidate some other fact already testified to in the case, and not now appearing upon the bill of exceptions.
3. Upon the examination of John McMillen, one of the co-defendants, the defendant proposed to prove by this witness that ho (the witness) had no bad feeling for Jackson Logsdon previous to the affray. This testimony was objected to, and the question was not allowed to be answered. In this case, it will be seen that all the co-defendants, who were not upon trial, were permitted to testify without objection. This was so held in Garrett and others v. The State, 6 Mo. R. 1.(1) That decision was based upon a passage in 2 Starkie, 22, and the passage in Starkie, upon an observation of Lord Hall, “ that the
No question was however made in this case, as to the general competency of the witness ; the subject is alluded to merely to show the unfavorable and doubtful position that such a witness must occupy at best. The question propounded" to John McMillen, was whether he (the witness) entertained unfriendly feelings toward Jackson Logsdon, previous to the affray in which he was •killed. The witness was the defendant, who, according to his own statement shot Jackson Logsdon. It is obvious that the question could only be answered in one way. He was not bound to criminate himself and an affirmative answer must have inevitably had that effect. The question was propounded by the counsel of his co-defendant, his accomplice in. crime, if any was committed, What weight could such an answer be entitled to under such cireumstances ? We are aware that the worthlessness of the testimony, is not a sufficient reason for rejecting it, and that it is the province of the jury to decide upon the weight of the testimony, but this circumstance among others, tends to show, that no purpose of advancing justice is to be subserved by the reversal of a judgment upon such a ground as this.
The only plausible ground for the introduction of such evidence as this, is the fact that John Logsdon, the witness for the prosecution, had previously testified that there were unfriendly feelings between his brother and the McMillens generally, and the defendant had a right to contradict the witness, and the proposed testimony of John McMillen had that tendency. The bill of exceptions shows, that upon a cross-examination of John Logsdon, in relation to this point, he stated that he was examined before the committing magistrate and there testified, that he did not know of any bad feelings on the part of the defendant towards Jackson Logsdon, and further that he did not then (upon the then trial) know of any, but that he did know of bad feelings on the part of his brother, Jackson, towards the defendant. This explanation would seem to show, that there was very little, if anything, left in the testimony of Logsdon on the subject which the defendant could desire to contra-. diet. He admits, that so far as the defendant was concerned, his opinion of the bad feeling, lie supposed to be entertained by him towards his brother, was rather an inference from his knowledge of the ill will which he candidly admits his brother and probably himself entertained for the defendant. So far as the defendant’s case was-concerned, there was nothing in Jackson Logsdon’s testimony which a negative response to the rejected question of his father’s counsel, could possibly contradict, and the only additional object to be attained by such an answer, was the possible effect it might have had in disproving the conspiracy and malice so far as the co-defendants were concerned.
4. Upon the examination of Ruth McMillen, the wife of John McMillen, one of the co-defendants, the defendant proposed to prove by her, that she had heard Jackson Logsdon recently, before the affray, threaten to shoot her husband. This testimony was rejected. As Jackson Logsdon was not a party to the prosecution, what he said is no more than the hearsay of any other man, and was therefore upon general principles inadmissible. Had his declaration been in articulo mortis or a part of the res gestae, they would have come within the exceptions to the general rule. The bill of exceptions does not show when the declarations were made. Recently is a word of indefinite character.(
5. The defendant called a witness named Prewitt, who testified that he saw John and Jackson Logsdon together on their way to Mr. Berry’s, the father-in-law of John Logsdon, about the month of September, 1847, and then proposed to prove that, about this time, John and Jackson Logsdon were at Marshall, in Saline county ; that John was there for the purpose of obtaining from the County Court a hateas corpus to get possession of his child, then in possession of his wife, who had left him and gone to her father’s, Mr. Berry ; that the court not convening, John and Jackson Logsdon returned towards Berry’s, John declaring with an oath, that he knew how he could get his child ; that witness and others then immediately mounted their horses for the purpose of resisting the talcing of the child by force, and followed after them; that as they came up, a pistol was seen in John Logsdon’s bosom, and as they attempted to pass Jackson Logsdon, the latter put his hand to his bosom, under his vest, as a man would in attempting to grasp his pistol, and holding his hand there, declared if any one attempted to pass him, they were dead men. This evidence was objected to, and the court excluded it. It is sufficient to say, that this evidence was totally irrelevant and had not the remotest tendency to elucidate any portion of the matter then before the jury.
(a) See State v. Roberts, 15 Mo. R. 28; State v. Edwards, 19 Mo. R. 674; State v. Clump, 16 Mo. R. 385; State v. Stotts, 26 Mo. R. 307; State v. Garrett, 6 Mo. R. 1, and note; State v. Coleman, 14 Mo. R. 157.
(b) State v. Sloan, 47 Mo. R., where subject is reviewed.