State v. Brannum

95 Mo. 19 | Mo. | 1888

Norton; C. J.

Defendant was tried at the May term, 1884, of the Dunklin county circuit court under an indictment charging him with having shot at one Dixie Glover with intent to kill, and was convicted and his punishment assessed at four years imprisonment in the penitentiary. From this judgment he has appealed.

In the progress of the trial during the examination of one Mizell, a half brother of Glover, he was asked, “Where is your brother now,” and the witness was allowed to answer over defendant’s objection, and said, “My brother is dead ; ” and further stated that it was a good deal over a year after he was shot before he died. This action of the court is assigned for error. It was entirely competent for the state to account' for the absence of Glover, who was shot, by showing that he was dead, in order to shut off unfavorable inferences which could have been drawn from the non-production of Glover as a witness, and we are not able to perceive how it could in any way have prejudiced' the jury, especially as no attempt was made to show that his death was the result of the shooting, but, on the con7 trary, the statement made, that so long a time intervened between.the time he was shot and his death, would repel such a presumption.

Defendant was examined on Ms own behalf, and in the course of his examination in chief stated that, “ Griover’s half brother was about three and one-half feet from me when the pistol fired.” On his cross-examination, he was asked, “ Do you know whether the pistol was fired at Mizell or Griover.” He answered: “To the best of my opinion, I guess it was fired at Griover.” When the above question was propounded, the record shows an objection to it in the following language : “Question objected to.” It does not show that any grounds for the objection were stated, and it is urged, therefore, that the objection ought to have been sustained, because the examination in chief of defendant did not authorize it. The trial court had no opportunity and was not asked to pass on that question, and we have repeatedly held that, unless the grounds are stated in an objection to evidence when it is made, we will not consider them here. Shelton v. Durham, 76 Mo. 434; Holmes v. Braidwood, 82 Mo. 610; State v. Price, 9 Mo. App. 581.

But if the specific ground of objection now made to the question had been made in the trial court, it ought to have been overruled, inasmuch as defendant had stated, in his examination in chief, that when the pistol fired Mizell was three and one-half feet from him, and inasmuch as the statute authorizes a defendant to be cross-examined as to “ any matter referred to ” in his examination in chief. R. S., sec. 1918.

As the record does not show that any exceptions at the time were taken to the action of the court in giving and refusing instructions they are not before us for review.

There is no error in the record justifying an interference with the judgment and it is hereby affirmed,

in which all concur, except Ray, J., absent.