71 Mo. 436 | Mo. | 1880
At the February term, 1879, of the Newton circuit court, the defendant was indicted for the murder of William Grimes. A trial at the August term, 1879, resulted in his conviction of murder of the second degree, and from the judgment against him, defendant has appealed.
The evidence disclosed the following facts:-that the deceased and the defendant were brothers-in-law, the latter having married a sister of the former, and that they had a misunderstanding in relation to a stock field.
Isaac Grimes, father of defendant’s wife, testified that on the 1st day of November, 1878, Cooper came to his house and asked him if deceased bought the stock field, lie and Cooper then went to where the deceased was hitching a team to a wagon, and Cooper asked the deceased if he bought the stock field from Juo. Grimes. Deceased an
Mrs. Thursa Grimes, mother of the deceased, the only person who witnessed it, testified that on the morning of the difficulty which resulted in the death of her son, Cooper came to her house and asked for her husband. After he left, she went down to a spring on the premises where William Grimes was at work on a wagon wheel. He asked her to get him a piece of iron, and in returning with it to the spring she saw Cooper in the bed of a branch, then dry, approaching the spring, and witness and Cooper arrived there together. The deceased was stooping or bending over at his work, and never straightened up, but said to Cooper, “ I suppose you are going to take that pasture from me any how.” Cooper said, “Who says so?” Deceased replied, “ It looks very much so by your turning your cattle in.” Cooper answered, “It’s a God damned lie,” and deceased said, “ It is another,” and Cooper thereupon shot him, inflicting the fatal wound. When shot, deceased slapped his hand to his side, and Cooper said, “God damn you, don’t you draw that on me.” After Cooper shot he drew his gun up as if he would shoot again, and witness knocked it to one side. Cooper then left. Deceased had a. pistol, and. it was found on the ground near his body. This occurred about ten o’clock in the forenoon, a half hour after Cooper was at the house inquiring for old man Grimes.
As a foundation for impeaching .the testimony of this witness, she was asked if she did not, at her residence, in November, 1878, have a conversation with Abner Edmond-
Mrs. Palmer, sister of the deceased, was at her father’s house on the morning of the 4th of November; heard a large gun fire, and very soon after heard small one. Her mother called her, and told her Cooper had killed Bill; witness ran down and found him dead. Lee Sheppard, on the morning of the homicide, was in a field with Brison gathering corn 300 or 400 yards from the place where Grimes was killed; heard report of a very large gun, and in a short time another smaller; heard screaming and went to the place. Brison’s testimony was to the same effect. He did not go to the spring. J. E. Meyers lived one-fourth or one-half mile from Grimes; he and Beavers were fixing floor in corn crib and heard two shots, one large, the other small, like shot gun and rifle; heard screaming and went to the place and found Grimes dead. This was substantially the evidence for the State.
Eor the defense, Abner Edmondson testified contradicting Mrs. Grimes, and stated that about the last of November, 1878, he and W. W. Laymon were at her house, and got permission from her to make some coffee by her fire, and while there, she said, speaking of the homicide, “her son was doing something, and Cooper came up, and a quarrel began, and her son shot first, and fired twice, and then Cooper shot her son.” W. W. Laymon’s testimony was to the same effect.
The defendant was introduced and testified for himself; and in his testimony contradicted old man Grimes, as to the conversation testified to by the latter. He stated that at that interview he and William settled the difficulty, about the field; he agreeing to credit William with the price of it on a debt William owed him; that on the morning of the fatal difficulty, he was hunting his sheep, and carried his gun to shoot dogs, if he found any sheep-killers. Other evidence showed that he had had sheep recently killed by dogs. He also contradicted Mrs. Grimes, as to the difficulty at the spring; and without detailing his evidence, it is sufficient to say, that, if true, it entirely
Many errors are alleged by defendant’s counsel, but there are only one or two to which we deem it necessary" to give particular attention.
The court erred in giving instruction No. 8 for the State. It was as follows : . “ The testimony of the witness, Jacob Syler, in regard to what Mrs. Grimes testified before the coroner’s jury at the time the inquest was held, is excluded from the consideration of the jury.” This assumes and declares that Syler’s testimony was in relation to what Mrs. Grimes testified to before the coroner’s jury; whereas, as his testimony appears in the record, it was in regard to a conversation had by her, and not her testimony on that occasion.
In a criminal proceeding the defendant’s status as a witness is the same as that of a party to a civil suit, who becomes a witness for himself, but it cannot be declared as a matter of law, that his testimony in his own behalf is entitled to the same credit, as if he were testifying in a civil suit in his own behalf. The credit of a witness testifying for himself in a criminal cause, is to be determined
There was no error in the admission of the testimony of Gibson and Eugate. It contradicted the accused in a material matter. He testified that he shot Grimes after
Many other errors are assigned which it is not deemed necessary to notice, but it may be well to suggest, that the zeal of the prosecuting attorney led him beyond his duty. If the evidence in a criminal cause will not justify a verdict against the accused, the prosecuting attorney will be more in the line of his duty in entering a nolle prosequi, than in attempting to procure a conviction by volunteering .a statement of facts not proved or a declaration of law not given by the court. The judgment is reversed and the •cause remanded.