State v. Dettmer

| Mo. | Nov 5, 1894

Sherwood, J.—I.

There was»no error in denying defendant’s application for a continuance, and this is true for several reasons: Both of the absent witnesses are permanent residents of Buchanan county, and were there a few days before the trial. The day before the trial, a brother of the deceased saw and talked to both of the witnesses, one in Savannah, Andrew county, where the cause was pending, and the other in St. Joseph. The record shows that a similar application on account of the absence of one of these witnesses had been granted by the court on a former occasion. The affidavit for the continuance states that affiant knows of no other witnesses by whom the same facts can be proved as by the absent witnesses and yet the record shows that there were several such witnesses who testified to the same facts at the trial.

An application for a continuance must not only be formally sufficient, but one of its essential elements, its prominent feature, must be an evident good faith. It must not be a mere dodge-trial-paper. Whether good faith prompts the application, the trial court is obviously the better fitted, more accurately, to judge. For this reason it is that it has become the uniform rule of this court to defer to the trial court in such matters, and not to reverse its action, unless the party assailing that action makes it plainly to appear that the judicial discretion in that regard has been unsoundly or oppressively exercised. State v. Banks, 118 Mo. 117" court="Mo." date_filed="1893-11-21" href="https://app.midpage.ai/document/state-v-banks-8011069?utm_source=webapp" opinion_id="8011069">118 Mo. 117, and eases cited.

No such abuse of discretion is apparent here. Besides, there were counter affidavits filed herein by the state, and that this is the proper practice has been the settled law in this state since the early case of Riggs v. Fenton, 3 Mo. 28" court="Mo." date_filed="1831-04-15" href="https://app.midpage.ai/document/riggs-v-fenton-6609152?utm_source=webapp" opinion_id="6609152">3 Mo. 28; State v. Bailey, 94 Mo. 311" court="Mo." date_filed="1887-10-15" href="https://app.midpage.ai/document/state-v-bailey-8009202?utm_source=webapp" opinion_id="8009202">94 Mo. 311; State v. McCoy, 111 Mo. 517" court="Mo." date_filed="1892-10-04" href="https://app.midpage.ai/document/state-v-mccoy-8010619?utm_source=webapp" opinion_id="8010619">111 Mo. 517.

II. There was no impropriety in admitting evidence of defendant’s having knocked down an old drunken Irishman, because this was the beginning of the hostility between Breeze and defendant, as Breeze took the old man’s part, remonstrated with defendant about his unmanly conduct, which remarks led to the quarrel and fight between Breeze and defendant, resulting in the latter “getting the worst of it,” and immediately afterwards making threats against Breeze which were continued from time to time and to different persons, • almost down to the time those threats found bloody consummation in the crime which constitutes the basis of the present prosecution. It was necessary, therefore, to show the relations between the parties, the genesis of their trouble, the cause of the malice borne by defendant towards Breeze, how it had its origin; and in order to show these things, in order to understand all about the case cib oro, it became necessary to show just how the difficulty originated, and th'is could only be satisfactorily done by showing that the trouble began over the attack made by defendant on the old Irishman. Otherwise Breeze would have been made to appear as the party in fault at the very inception of bad feeling between the parties.

And if error had been committed in the reception of the testimony mentioned, that error was cured by the introduction of testimony of a similar kind to that in regard to the old Irishman, when defendant came on the stand to testify; at which time defendant testified that Breeze was in fault and the aggressor in the first quarrel, and gave him a very severe beating, the effects of which, defendant stated, he still felt.

The rule is universal in its acceptation, that evidence of other crimes, of other fights between the same parties, or between one of them and some stranger, may be received wherever and whenever such testimony, otherwise inadmissible, has any tendency to elucidate any pending investigation or to discover the hidden springs which prompted any litigated step or action.

III.- The instructions which were given by the court were twenty in number, and embraced* all grades of homicide except manslaughter in the first and second degrees, and on other points the instructions were such as have often been approved by this court.

But it is urged that an instruction asked by defendant on the subject of manslaughter in the fourth degree should have been, given. When this record is carefully read, however, it is, difficult to resist the impression that neither instructions on manslaughter in any of its degrees, nor on the subject of self-defense should have been given. Not on the subject of self-defense, because the right of that nature is not to be invoked unless all other means fail; it is the dernier ressort, and in order to justify a homicide on the ground of self-defense, the doer of the homicidal act must have done everything in his power, consistent with his safety, to avoid the danger and to avert the ■necessity; and he must retreat, if retreat be practicable. Kerr’s Law of Horn., sec. 180, p. 203 and cases cited; State v. Tabor, 95 Mo. 585" court="Mo." date_filed="1888-04-15" href="https://app.midpage.ai/document/state-v-tabor-8009326?utm_source=webapp" opinion_id="8009326">95 Mo. 585; State v. Gilmore, 95 Mo. 554" court="Mo." date_filed="1888-04-15" href="https://app.midpage.ai/document/state-v-gilmore-8009321?utm_source=webapp" opinion_id="8009321">95 Mo. 554. This rule is applicable to the facts of this case, although it has its well ascertained exceptions.

Here defendant made no attempt to avoid the dire necessity of firing the fatal shot; he did not retreat nor even attempt' to do so; he simply stood his ground, and not satisfied with firing one shot at his adversary, causing him to dodge down behind the table to avoid his murderous aim, he continued to fire after his enemy’s back was turned and when he was fleeing from him. There is abundant testimony to this effect; it is true there is some to the contrary, but the former testimony is supported by the physical facts in the case, to wit: That Breeze is found dead with a bullet 'which entered the back of Ms head and ranged forward over his right eye, and by the further physical fact that no man was ever known to attempt to throw at another by looking at Mm over Ms left shoulder, or by turning aivay Ms head from him at the very instant he was attempting to throw at him!

When witnesses attempt to establish a certain theory by their testimony, they must first look to it well that their testimony must not go counter to the physical facts in the case; for, if it does, neither courts nor juries are required to stultify themselves by disbelieving the immutable physical facts in the case, §nd so we have said on a number of occasions. State v. Anderson, 89 Mo. 332; State v. Bryant, 102 Mo. 24" court="Mo." date_filed="1890-10-15" href="https://app.midpage.ai/document/state-v-bryant-8009890?utm_source=webapp" opinion_id="8009890">102 Mo. 24; State v. Turlington, 102 Mo. 642" court="Mo." date_filed="1890-10-15" href="https://app.midpage.ai/document/state-v-turlington-8009953?utm_source=webapp" opinion_id="8009953">102 Mo. 642; State v. Nelson, 118 Mo. 124" court="Mo." date_filed="1893-11-21" href="https://app.midpage.ai/document/state-v-nelson-8011070?utm_source=webapp" opinion_id="8011070">118 Mo. 124; State v. Nocton, 121 Mo. 537" court="Mo." date_filed="1894-05-08" href="https://app.midpage.ai/document/state-v-nocton-8011311?utm_source=webapp" opinion_id="8011311">121 Mo. 537.

Now, regarding an instruction as to manslaughter in any degree: There is the testimony of at least three witnesses that defendant on the night of the first difficulty and two weeks before- the last one, made ominous threats of revenge against Breeze, repeated at least twice afterwards and down almost to the night of the homicide; that on that night and just a short time before the homicide, Berry asked defendant to lend him his pistol, but defendant told him “he might want to use it” himself. On that night, too, while in Porter’s saloon, he kept his hand in his pocket where he had his pistol, and presumably on that weapon. So that the testimony lays a broad basis for the existence of preconceived malice on defendant’s part, aside from the fact of the use of a lethal weapon; and where malice is shown to have been harbored, and a fresh provocation arises to the party cherishing the malice, the provocation is to be disregarded, unless the murderous purpose can be shown to have been abandoned before the act was done; because, where provocation intervenes between expression of malice and killing, the presumption is that the killing was upon the malice, and not upon the passion produced by the provocation. Kerr’s Law of Horn., sec., 97, p. 91, and cases cited.

For these reasons, no error occurred in refusing to give defendant’s instruction as to manslaughter in the fourth degree, nor would error have been committed had instructions as to all degrees of manslaughter been refused, as well as instructions on the theory of self-defense.

These views result in an affirmance of the judgment.

All concur.