264 Mo. 420 | Mo. | 1915
On an amended information filed in the circuit court of Washington county charging appellant with murder in the first degree in having shot and killed one James Edsell, appellant was upon a trial in said circuit court at its August term, 1913, convicted of murder in the second degree and his punishment assessed at ten years’ imprisonment in the penitentiary. Upon the overruling of his motion for a new trial, an appeal was granted to this court, and the approval of a bail bond by the trial court authorized
The witnesses in regard to the dying declarations were Dr. David Foard, Silas Baker and Henry Tyrey. Dr. Foard, whose testimony is in the main that of the others, testified that he reached the scene of the shooting about 10:30 o ’clock p. m., August 6, 1911; that he was called there to attend James Edsell, who was alleged to have been shot by appellant. Upon his arrival the doctor found Edsell lying on the ground in front of the church; that he examined and determined the location of the wounds, and informed Edsell they were fatal and that he was bound to die. Edsell said he knew it, and began to tell his friends good-bye. One of them was his father-in-law, Mr. Tyrey. In telling them good-bye Edsell said he knew he was going to die, and, addressing his father-in-law, asked him if he would not take care of his (Edsell’s) wife and children. Edsell, in detailing the facts in regard to the difficulty to the witness after he had said he knew he was going to die, stated, in effect, that after he (Edsell) and some young men present had been quarreling appellant said to Edsell: “You have said enough to the boys;” that he (Edsell) then stepped down off of the porch before
Appellant assigns as error: (1) The improper admission of the testimony of certain witnesses as to the dying declarations of the deceased; (2) The exclusion of certain testimony of appellant’s witnesses named in the motion for a new trial; (3) The giving of all of the instructions on the court’s own motion; (4) the refusal of instructions numbered 1, 2 and 3 asked by the appellant; and (5) permitting special counsel for the State to refer to what appellant failed to say when he was a witness and subject to cross-examination.
I. Dying Declarations. — Appellant contends that error was committed in admitting statements of certain witnesses in regard to the dying declarations’ of the deceased. It is elementary that dying declarations are admissible when made under an impression of impending death. It will be recalled that the deceased was told by the witness, Dr. Foard, that his wounds were fatal and that he was bound to die from the effects of same. To this the deceased replied that he knew this to be a fact, and thereafter he bid friends who approached him good-bye and especially requested his father-in-law to take care of his wife and children. These parting adieus and his anxious solicitude as to the future care of his wife and children are confirmatory of his general realization expressed to the witness, Dr. Foard, that he was conscious of his impend
The consciousness of the declarant in the instant case that his wounds were fatal renders admissible the testimony of the witnesses, other than Dr. Foard, to whom the deceased made relevant statements in regard to the difficulty after his declaration to Dr. Foard of a
II. Exclusion of Testimony. — Appellant contends that the trial court erred in excluding parts of the testimony of certain of his witnesses, whose names are set forth in the motion for a new trial. After a careful examination of the entire testimony, especially that of the witnesses named, we find that no such definite and specific objections were made to the court’s ruling in this regard as to preserve the errors, if they existed, for our consideration. No reasons were assigned in opposition to the trial court’s rulings, counsel for the appellant simply contenting themselves with “I object.” This, we have repeatedly held, is not an objection sufficient to base an exception thereon which will authorize a review of the trial court’s action here. It is not a finical reason to exclude matters sought to be preserved for review by this class of objections, but the rule is based upon an effort on the part of the
III. Instructions Given. — Appellant contends that the instructions, fourteen in number, given by the court on its own motion, were erroneous. Instruction numbered 1 correctly declared the law in regard to murder in the first degree. Appellant, however, was convicted of murder in the second degree, and if the instruction had been erroneous he would not be heard to complain. This was ruled as above stated upon the former appeal in this case. [State v. Lewis, 248 Mo. l. c. 504, following a like ruling in earlier cases.]
Instructions numbered 2, 3, 4, 5, 6, 7, 8 and 9 covered murder in the second degree, presumptions arising from the use of a deadly weapon, credibility of witnesses, credibility of defendant as a witness, presumption of innocence, reasonable doubt, and that the information was a mere formal charge. These instructions were literal copies of in
Instruction numbered 10 is in regard to self-defense. Notwithstanding its great length, it correctly declares the law and follows approved precedents to be found in State v. Sebastian, 215 Mo. l. c. 76, and State v. Lewis, 248 Mo. l. c. 508.
Instruction numbered 11 relates to statements out of court. A similar instruction in all of its material features was approved by this court in State v. Wilson, 223 Mo. l. c. 192, and many previous cases.
Instructions numbered 12 and 13 were given at the request of appellant.
IV. Instructions Refused. — Tbe trial court refused appellant’s instructions numbered 1, 2 and 3. Each of these instructions commented upon the evidence, singled out certain facts and directed the jury to consider them, without embracing’ other essential facts necessary to a proper consideration of the case; in addition, if instruction numbered 1 had been properly framed it was fully covered by instruction numbered 14 given by the court.
There was, therefore, no error committed in the refusal of these three instructions asked by appellant, especially in view of the fact that the instructions given covered every phase of the case under the evidence.
V. Remarks of Counsel for State, — -Counsel for the State in his argument stated that “three witnesses, ’’ naming them, “had testified that on the night after the shooting the appellant had visited Miss Palmer,, the girl who was wounded when the first shot was fired, and had said to her, ‘Laura, I shot, and killed you, ’ and that appellant had gone on the witness stand to testify and had not denied same. ’ ’ Miss Palmer had been escorted to the church by appellant the night of the shooting and was standing by his side when the first shot was fired which struck the girl. It was true, as stated by counsel, appellant did not when on the stand deny this declaration stated to have been made by him to Miss Palmer. Under our ruling in the recent case of State v. Larkin, 250 Mo. 218, in which Faris, J.,. lucidly and exhaustively reviewed the statute (section 5243) and overruled the cases construing this statute and holding that counsel for the State could
We find no prejudicial error in this case; the judgment of the trial court should therefore be affirmed, and it is so ordered.
PER CURIAM. — -Appellant in his motion for rehearing contends that we have overlooked, to his prejudice, his exception to the admission by the trial court of the testimony of Silas Baker, a witness for the State, who testified as to certain dying declarations of deceased. The burden of this contention is that at the time of the making of the declarations to this witness the deceased did not express a belief that he was in extremis. This belief had been expressed by the deceased to Doctor Foard, who was leaving just as the witness came into the presence of the deceased. The latter, after saying to the witness Baker, “I guess I got what was prepared for me,” proceeded to state the facts and circumstances connected with the difficulty. He made no statement to this witness as to his belief of his impending dissolution, nor did he then, or thereafter, indicate a belief that he would recover.
It is not a prerequisite to the admission of dying declarations that the declarant should state to each one to whom he makes the declarations that he believes he cannot recover, or words of similar import.
Dying declarations are admitted, first, on account of public necessity, and, second, because it is presumed
There was no absence of preliminary proof necessary to authorize the admission of the statements made by the deceased to the witness Baker. The belief of the deceased that he could not recover, expressed to Doctor Foard a few minutes before the statements were made to the witness Biaker, constituted sufficient proof to entitle these statements to admission as dying declarations. We, therefore, hold that appellant’s contention as to the inadmissibility of the statements made by Baker is without merit, and we overrule the motion for rehearing.