247 Mo. 685 | Mo. | 1913
Upon trial had in the circuit court of the city of St. Louis, defendant, under an information charging him with murder in the first degree, was convicted of murder in the second degree for the killing of Eugene Walsh on August 6, 1911, in said city, by shooting him with a pistol. The plea was self-defense. The punishment. was assessed at ten years in the penitentiary, and by proper steps defendant brings the case here for review.
The evidence for the State tended to show that the deceased, Eugene Walsh, at the time of his death
On Sunday afternoon, August 16, 1911, at about 12:30 o’clock, Mrs. Walsh, mother of the deceased, saw defendant standing on the Dion porch, and directed her son Joe to go over and tell defendant to come to the Walsh house. Joe immediately went over to the Dion house and called to defendant to come down into the yard. Defendant accepted the invitation, and Joe asked him what he meant by making false statements in a letter to Frazer about his sister. Defend
The testimony for the defense contradicted the State’s evidence as to the position of some of the persons at the scene of the shooting, and also as to the demeanor of deceased as he approached defendant just before the shooting. Defendant testified that on Saturday evening, the day before the tragedy, in the presence of himself, Mrs.' Walsh and James McHugh, out near a swing on the vacant lot, the deceased told him that the next time he saw him he was going to brain him. Mrs. Walsh testified that she did not hear deceased make the threat. The other living witness, McHugh, was not present at the trial. McHugh’s brother testified that the absent witness was then living in Cincinnati or in Alabama. Defendant’s subpoenas for witness McHugh were returned non est. This witness testified at the preliminary hearing before the committing magistrate that he heard deceased make the threat. A transcript of this evidence, showing that the witness had been cross-examined by the State, and the authenticity of which was admitted by the State, was, after showing first being made of above facts, offered in evidence by defendant, but the offer was refused, and defendant saved an exception. Defendant further testified that when Joe Walsh came to invite him down to the Walsh house, just prior to the shooting, he said, “I am going to break your damned head for the letters you'wrote about my sister,” but that later, and before going down to the Walsh house, Joe assured defendant that there would be no trouble if he went with him; that after the conversation with Joe Walsh and Nellie Walsh, at the
Several witnesses testified that defendant bore á good reputation as a peaceable and law-abiding citizen in the community in which he lived.
Defendant complains of the rulings of the court, (1) in refusing to admit the testimony of witness Mc-Hugh given at the preliminary hearing; (2) in failing to instruct on manslaughter in the fourth degree; (3) in refusing certain instructions asked by defendant.
I. During the argument of this case before this court, a dispute arose between contending counsel as
Section 5056, Revised Statutes 1909, provides that in capital cases the defendant must be accorded the right of a preliminary examination before a magistrate, and under section 5033, Revised Statutes 1909, in homicide cases, the testimony of the witnesses must' be reduced to writing. Section 5026, Revised Statutes 1909, provides that the witnesses produced at a preliminary hearing shall be examined on oath and in the presence of the prisoner. The statutes, however, do not expressly provide for the introduction or use of such testimony upon trial of the case. The English statutes, 1 and 2 Phil. & M., c. 13, sections 4, 5, and 2 and 3 Phil. & M., c. 10, enacted in the 16th century, were very similar to the present statutes of Missouri concerning examinations before committing magistrates. While the English statutes, contained no direct provision for admitting the testimony thus taken, yet by general practice it became a common-law usage that when the defendant was present at the preliminary examination,, and had enjoyed the privilege of cross-examination, the Crown could in
“By the statutes of Philip and Mary, magistrates were directed and required to take the depositions of witnesses in certain criminal cases, and it has always been held, under these English statutes, that if the defendant were present at the taking of the deposition, and the witness were dead, it might be read on the trial as evidence. And yet there was nothing in the statutes from which it could be inferred that depositions were to be received as evidence. But the law having sanctioned them, it seems they became admissible upon general principles, provided the defendant was present, had the liberty to cross-examine, and the witness was dead.”
The power to take depositions at common law in criminal cases did not exist, but where the deposition was taken pursuant to some statutory authority, the common law rule was that it was admissible as to form, notwithstanding there was no statutory authority for its admission. And the fact that present statutory enactments do not provide for the admission of every form of deposition (as, for example, testimony taken at a preliminary hearing) is not to be construed as changing or restricting the common law rule with reference thereto. The rules of common law on the subject remain in force unless expressly changed by statute. [2 Wigmore on Ev., sec. 1411.] This rule, allowing the State to use evidence of that character and in that form, was recognized at an early date in this State in the leading case of State v. McO’Blenis, 24 Mo. 402, when the testimony of a witness given be
The Supreme Conrt of California, in the ease of People v. Bird, 132 Cal. l. c. 264, after discussing the limitations interposed against the State in offering evidence of this kind, very clearly states the rule with reference to the rights of the defendant as follows:
“But, upon the other hand, there is in this no restriction upon the rights of a defendant. The rule as to him is the same as it was before the adoption of the codes, and as it stood at common law. He may waive his right of confrontation, if he so desires, and introduce' in evidence the testimony of such dead or absent witnesses, whether that testimony was given at the preliminary examination or upon a former trial of the caused’
The transcript offered showed that witness Mc-Hugh testified that he heard the deceased make the threat to defendant on the Saturday evening preceding the killing, which occurred on Sunday. This testimony corroborated that of defendant on that point. Mrs. Walsh contradicted defendant’s testimony in that regard. Both Mrs. Walsh and defendant were interested witnesses. McHugh, so far as the record shows, was disinterested, and defendant was "entitled to have the jury consider his testimony concerning the former threat, the showing of threats being very material to the defense interposed, and it was error to refuse it.
II. Defendant next complains of the action of the court in not instructing on manslaughter in the
III. Defendant next contends that the court committed error in refusing certain instructions
“No. 3. The court instructs the jury that the fact, if it be a fact, that the defendant' wrote a letter to the witness, Frazer, which was of such a character as to offend the deceased, or other members of the Walsh family, and the fact, if it be a fact, that during the conversation in the Walsh yard, on Sunday, the defendant stated that the statements contained in said letter were true, did not authorize or warrant Eugene Walsh or any one there present to attack, assault, or attempt to attack or assault the defendant, and in passing upon the guilt or innocence of the defendant in this case it is wholly immaterial whether defendant wrote a letter to Frazer or not, and it is also immaterial whether the statements contained in said letter were true or false, or that defendant asserted they were true. There is no evidence before you as to what said letter contained, and the letter and its contents do not in any way affect the guilt or innocence of the defendant in this case.”
Reference to such letter necessarily occurred upon the trial, in relating the conversation that took place at or near the time of the killing. Defendant contends that the State’s attorney construed the letter and its suggested contents as a sort of moral justification of the attack made on defendant by the deceased, and that an effective slogan of the State was, “Poor Gene Walsh had a right to defend his sister’s honor. ’ ’ If such remark was made by counsel for the State (which does not appear in the record), the de
The remaining instructions offered by defendant and refused by the court relate to the questions of
The judgment is reversed and the cause remanded. Boy, G., concurs.
The foregoing opinion by Williams, C., is adopted as the opinion of the court. All the judges concur.