State v. Griffin

87 Mo. 608 | Mo. | 1885

Henjry, C. J.

The defendant was indicted in the Greene circuit court for the murder of one John Conroy, in February, 1883. On his application a change of venue was awarded to Christian county .and the cause-was tried at the August term, 1883, of the Christian circuit court, and resulted in the conviction of defendant, and his sentence to the penitentiary for a term of fifty years. From that judgment he has appealed.

The first point made, and here for the first time-made, is that the record does not show that the grand jury which found the indictment was chosen and summoned according to law. Sections 2784 and 2785 of the-Revised Statutes of 1879, are not materially different from the provisions of the act of the General Assembly approved March 15, 1873, on the same subject, which, in the State v. Pitts, 58 Mo. 556, and The State v. Knight, 61 Mo. 373, were held to be merely directory, and on the authority of these cases, this question must be rulpd against the appellant.

The objection that the names of all the material witnesses for the state were not indorsed upon the indictment came too late. It should have been made on a inotion to quash the indictment. State v. Roy, 83 Mo. 268.

Another alleged error is that the court refused to-permit the accused to show, by cross-examination of one-Hooper, that the witness had been in places in Springfield, where there was gambling, in company with Conroy, the deceased, and also that witness had played ca-rds in Springfield, and who was present. It was wholly immaterial whether the witness or Conroy played cards or not. Their innocence or guilt of any other crime was noc in issue in this cause.

The instruction given by the court, number four, is •complained of as meaningless and misleading. It declares that: “A danger existing only, in the imagination of the accused will not excuse or justify the killing •of Conroy. There must have been an apparent danger, affording a reasonable ground for apprehension, on the part of defendant, that unless he killed, or disabled. Conroy, his own life or limbs were in imminent peril. Whether the appearances of danger to the accused were such as to afford such reasonable ground of apprehension, is a question for the jury.” We see no objection to the instruction.

It is objected to the seventh instruction that it tells the jury they should, in connection with other facts in ■evidence in the case, in determining his guilt, or innocence, consider the fact, if found, that after he killed ■Conroy defendant fled or concealed himself. The flight of the party accused is a circumstance tending to prove guilt and should be considered by the jury, and we see no impropriety or error in giving the instruction complained of. The objection urged to the ninth instruction is its brevity. We have not had the pleasure of considering many instructions of which this complaint could be made. The one in question is to the effect, that insulting epithets, or opprobrious words, would not justify an assault. That is a correct proposition of law, and the instruction is' commendable for the few words employed to announce it. The tenth instruction, it is alleged, is not based upon any testimony in the case. Counsel have overlooked the testimony of Patterson, who testified that the accused told him that he threw his pistol in Peacher’s face, and told him to let him go. It is also contended that there was no evidence upon which to predicate the eleventh instruction, which related to the right of Conroy, to carry a pistol. It was wholly immaterial whether he had' or not. The question was, Aid he attempt'to use it against the defendant. If in violation of law lie carried a concealed weapon lie might have been prosecuted and convicted for it; but it did not constitute him an outlaw whom any one could kill with impunity. The instruction defining murder in-the-second degree was warranted by the evidence. The refused instructions, so far as they contained proper declarations of law, were embraced in those given by the court.

The newly discovered evidence upon which defendant asked a new trial was cumulative evidence. That a pistol was found on the floor of the saloon, soon after Conroy was killed, and was handed to the saloon keeper by Blackburn, whose affidavit was filed with the motion for a 'new trial, was testified to by the saloon keeper, and no reason is shown why the defendant, or his attorneys who learned what the saloon keeper would testify to, did not ascertain from him who gave him the pistol. Peacher, the saloon keeper, made an affidavit which was also filed, stating that he did not, when he testified in the cause, know the name of the person who picked up the pistol from the floor, and handed it to him, but had since learned his name to be Jno. Blackburn. He does, not say he did not know the man but did not know his name. Blackburn is a colored man, and made an affidavit for the state in which he stated that he saw- no. pistol on the floor, after Conroy was killed, while Conroy lay there. That he found one afterwards while sweeping up the room, lying behind the door. Also-that he had known Peacher for three or four years and that Peacher knew him well by name. That he traded with him and that Peacher always recognized him on the street. That affiant had lived in Springfield, where the killing occurred, for several years and was seldom, absent from the city, and never more than two consecutive days within that time

The court did not err in refusing defendant a new trial, on such affidavits as the two made by Blackburn, and the one made by Peacher. If they constitute a sufficient foundation for a new trial, a criminal prosecution might be interminable.

The remarks made by Mr. Heifer nan, in the closing argument for the state, certainly afford no ground for a, reversal of the judgment. They were as follows: “The sheriff of Greene county, Missouri, had often entrusted the deceased with the most important business, that he had a mother only fifteen miles away, that she had abandoned him, she is not here to share his troubles,, and the only question for you, gentlemen, of the jury,’ to decide is whether law and order shall prevail in this community, or whether the defendant, this murderer, shall be punished.” I suppose there can be no doubt that Conroy had a mother, but I am unable to see how that fact, or the other facts (that she lived fifteen miles from Springfield and had abandoned the deceased, and was not at Springfield to share his troubles), could have prejudiced the accused, if Mr. Heffernan had for hours harangued the jury on those wholly immaterial facts. In calling the defendant a murderer, he only pronounced him, what his whole argument must have been devoted to in an attempt to demonstrate him to be, and while I think it would be in better taste to abstain from the use of such epithets, we cannot reverse the judgment because the attorney called the accused what the evidence for the state tended to prove him to be.

We come now to an alleged error which presents a question of more difficulty. The prosecuting attorney 'of Christian county, where the cause was tried, having been of counsel before his election, could not conduct the prosecution. The prosecuting attorney of Greene county had not followed the cause tc Christian. The statute, section 518, provides as follows : “If the prosecuting attorney or assistant prosecuting attorney, be interested, or shall have been employed as counsel in 'any case which it shall be his duty to prosecute or delend, the court having criminal jurisdiction may appoint some other person to prosecute or defend the cause.” Section 519 provides that “If he be sick, or absent, such court shall appoint some person to discharge the duties of the office, until the proper officer resume the discharge of his duties.” In the case at bar, the record discloses the fact, that the prosecuting attorney of Christian county had been employed in the case, and that S. H. Boyd, J. J. Gideon, F. S. Heifernan and T. J. Delaney “were permitted to prosecute for the state in this behalf.” The first of the above sections .does not contemplate the appointment of one as a prosecuting attorney, a state officer, who is to take the oath of office and be invested with the same authority in the case, as is possessed by the prosecuting attorney pro tern., appointed under section 519. He is simply appointed to prosecute or defend. Here the four attorneys were permitted to prosecute, and were in, effect, appointed to prosecute. It would look more like a prosecution, and less like persecution, if the court had appointed one reputable attorney, either of the four, to prosecute the accused instead of making an order appointing or permitting four able attorneys, all probably retained by the friends * of the deceased, to represent the state in the prosecution of the cause. It is a practice which should not prevail, and, while we do not hold it reversible error, we cannot refrain from expressing our disapprobation of the practice.

While the statute does not authorize the appointment of a prosecuting attorney in the place of the regular prosecuting attorney, who shall have been employed as counsel in the case, it does contemplate the •appointment of an attorney to prosecute the cause, and he should be one, not acting under the stimulus of a retainer, but standing unbiased, representing the state, •and as ready and willing to protect the accused, if innocent, as to labor for his conviction if guilty of the «barge. This we regard as the duty of a prosecuting •attorney. Nothing in the record shows that the four attorneys appointed were previously retained to prosecute the defendant. It is merely an inference, and it may be that it is not true. No objections were made to the order permitting them to prosecute. We have discovered no error in this record, which would warrant a reversal of the judgment, and it is, therefore, affirmed.