209 Mo. 366 | Mo. | 1908
At the March term, 1906, the grand jury of Wright county returned an indictment against Rankin Long and John Long, the defendant herein, charging that the said Rankin Long on the 9th day of March, 1905, at the county of Wright, State of Missouri, feloniously, willfully, deliberately, premeditatedly, on purpose and of his malice aforéthought did make an assault in and upon one Joseph Buttram, and with a certain deadly weapon, to-wit, a certain knife, which he the said Rankin Long in his right hand then and there had and held, the said Joseph Buttram feloniously, willfully, deliberately, premeditatedly on purpose and of his malice aforethought, did strike, stab
A severance was granted, and it seems that Rankin Long was tried and convicted of murder in the second degree. After several continuances, Judge Argus Cox, the regular judge of said circuit, disqualified himself on the record, and the prosecuting attorney and the defendant not being able to agree upon some attorney to sit as special judge, Judge Cox requested Judge J. L. Fort, the judge of the twenty-second Judicial Circuit, to try the cause, and set the cause down for April 23, 1906, for hearing. On April 23, 1906, Judge Fort being unable to be present and hold the court, the cause was continued until July 2, 1906. On July 2nd, Judge Fort again failing to appear, Judge Cox requested Judge William H. Martin of the fourteenth Judicial Circuit to try the case, and the cause was set down for July 2nd, and on that date the cause was reset for the 2nd Monday in September, 1906. On this last-mentioned date, the court met pursuant to adjournment, and Judge Martin appeared and proceeded to preside in the cause and the defendant filed an application for
“State of Missouri v. John Long.
“Now comes the prosecuting attorney, who prosecutes the pleas of the State in its behalf, and also comes the defendant in person and by his attorneys, and both announce ready for trial.”
Thereupon the jury was impanelled and sworn as the law directs, and after hearing the evidence offered by the State, the defendant by his attorneys filed his demurrer to the evidence, which was overruled, and on the next day, the record proceeds, the defendant by his attorneys filed his motion to require the prosecuting attorney to close the argument in the case, which motion was overruled. The record proceeds then to state: “And the jury after hearing all the evidence offered by the State and the defendant, instructions of the court, and argument of the counsel, doth retire to consider their verdict.” And on the next day, the record recites: “Now on this day comes the jury in open court and return the following verdict: ‘We the jury find the defendant guilty of manslaughter in the fourth degree, and assess his punishment at imprisonment in the penitentiary for a period of two years. J. H. Pool, Foreman.’ ” And afterwards within four days, the defendant by his attorneys filed his motions for new trial and in arrest of judgment, which were taken up and overruled, and the defendant sentenced to the penitentiary for a term of two years. From that sentence he was granted an appeal to this court.
The State’s evidence tended to show that on the 9th of March, 1905, a meeting of the Temperance
The defendant’s evidence tended to show that he was in the Baptist church the night of the difficulty and occupied a seat near the door and .did not move from Ms seat until after the benediction had been pronounced and did not go into the churchyard until after his brother Rankin Long and the deceased had had their difficulty; that he then went up to Rankin and said to him: “You must cut out that fight or you boys will be pulled for it.” His evidence tended further to show that there had been a bad feeling between Rankin
In rebuttal the State offered witnesses who testified that Houston Olymer, one of the defendant’s witnesses, stated to various parties that he was in the church at the time of the killing and knew nothing of the difficulty until it was over. The State also offered evidence to show that the deceased did not grit his teeth or make any faces at Rankin Long in the church that night either as he passed out or while he was seated in the pew.
I. The grounds upon which the defendant seeks a reversal of the judgment will be noted in the order of defendant’s brief.
The indictment is assailed for not properly charging the defendant with the killing of Joseph Buttram and not properly charging the venue as to the defendant and in not having the names of the witnesses endorsed thereon.
Treating of these in their inverse order, it is sufficient to say that no motion to quash was made on account of the failure to endorse the names of the witnesses on the indictment, and it is too late after final judgment to raise this objection. Clearly the attention of the circuit court was never called to it at any stage of the proceedings in that court. Moreover, ten of the
As to the venue of the defendant’s offense, the venue as to Rankin Long was laid at the county of Wright in the State of Missouri, and having charged that Rankin Long at said county and State on the 9th of March, 1905, did feloniously, willfully, deliberately, premeditatedly on purpose and of his malice aforethought stab said Joseph Buttram with a deadly weapon, to-wit, a knife, and giving to him one mortal wound, of which he on said day at the county of Wright and State of Missouri instantly died, the indictment proceeds to charge, “And the jurors aforesaid upon their oath aforesaid do further charge and present that John Long then and there” did aid and abet the felony and murder to commit,- the time and place at which the defendant was present aiding, abetting and assisting in the said homicide, was sufficiently indicated and it was not necessary to repeat Wright county and State of Missouri. Besides, the venue was laid as to both offenses in the margin of the indictment. [Secs. 2527 and 2535, R. S. 1899; State v. Beaucleigh, 92 Mo. l. c. 496; State v. Dawson, 90 Mo. 149.]
The indictment was sufficient both' in form and substance in charging the defendant and his brother with the murder of Joseph Buttram.' A less specific charge was upheld in State v. Burns, 99 Mo. 471. The pleader in this case has avoided the point upon which error was predicated in that case and followed the approved form set out in Kelley’s Crim. Law and Practice, section 471.
II. The jurisdiction of Judge Martin to preside in the cause is challenged for the first time in this court. The claim is now made that the cause should have been sent to another circuit. No exceptions, were taken or saved to the calling in of Judge Martin to try the cause, either at the time that he was called or at any time
III. It is next insisted that the record fails to show the presence of the defendant at important steps in the prosecution of the cause. Thus, it is said the record fails to show the presence of the defendant when Judge Cox disqualified himself and called Judge Fort to try the case and set down the trial for April 23, 1906, and also fails to show his presence on April 23, 1906, when the court was adjourned until the 2nd of May, and on the 2nd of May when his attorney filed a motion for a change of venue, and on May 3rd when that application was overruled, and 'fails to show his presence on October 13, 1906, when the jury returned the verdict; on October 15, 1906, when the motion for new trial was filed and overruled; on October 16th, when motion in arrest was filed and overruled. Section 2610, Revised Statutes 1899, provides: “No person indicted for a felony can be tried unless he be personally present during the trial.....Provided,
As to the failure to show the presence of the defendant when his motions for new trial and in arrest were overruled, he made no request to be present, if in fact he was not, and it has been ruled that an application for a continuance and its consideration was no-part of the trial. [State v. Hall, 189 Mo. l. c. 264-5.] Likewise the failure to show his presence at the filing, hearing and overruling of motions for new trial and in arrest, was not error. [State v. Brown, 63 Mo. 439; State v. Hoffman, 78 Mo. l. c. 258; State v. Lewis, 80 Mo. l. c. 112; State v. Elkins, 63 Mo. l. c. 163.] Accordingly, this assignment must be ruled against the defendant.
IV. As to the admission of testimony in behalf of the State over the.objections of the defendant, no point is made in brief of his counsel, but we have examined the record and find that the objections were made either after the witness had testified or because the testimony was irrelevant, incompetent and immaterial,
As to' the objection to the testimony of Wm. Scrivener, in rebuttal, that the deceased bore a good reputation as a peaceable, law-abiding citizen, “for the reason that his good reputation is conceded,” it is obvious no harm could have resulted to defendant. As to the admission of the clothing of deceased to show where the stabs were inflicted, there was no error. [State v. Wieners, 66 Mo. l. c. 29; Wigmore on Ev., sec. 1157; State v. Miles, 190 Mo. l. c. 546.]
Y. The exclusion of testimony offered by defendant. Everett Randolph, a witness for defendant, testified, that he saw deceased and Rankin Long go out of the church together. He followed close behind them. Tie heard Rankin say he would go no farther and then saw deceased strike Rankin and then heard the licks. Asked if defendant John Long was present, he said he saw him just after he got out of the church; that he stepped up to the side of the witness; that defendant, John, took no part in the encounter. Asked if John Long had taken a part in it he could have seen him, he said, “Yes, sir, I could.” To this an objection was made by the State, as incompetent, whereupon the court said: “Let the witness tell where this was and what he did see and let the jury infer what he could have seen; the objection is sustained.” Exception saved. Thereupon the witness testified, that defendant did not come out of the church until after witness did; that neither witness nor defendant came out until after the benediction had been pronounced; that deceased and Rankin preceded them two or three minutes and he followed them and saw the encounter. While the question was proper, it is obvious no harm resulted to defendant, as the witness placed himself right on the
Again, when Frank Clymer, a witness for defendant, testified, he did not go out of the church until the difficulty was over; did not see defendant after he left the church, he was asked, “If there was anything said there over the body about anybody having hit Joe Butt-ram except Rankin Long, at any time there at the body?” To this counsel for the State objected and the objection was sustained and defendant excepted. This ruling was correct. The answer called for hearsay testimony. The difficulty was over. The deceased was dead and the defendant was not present.
VI. The defendant complains that C. A. Newton, an attorney at law other than the prosecuting attorney, was allowed to make the closing argument in the case, but as this was not assigned as error in the motion for new trial, it is not before us for review.
The court instructed the jury on murder in the second degree and manslaughter in the fourth degree; on reasonable doubt and the presumption of innocence, self-defense, and on what constituted aiding, assisting and abetting the killing of the deceased by Rankin Long and what would not constitute the same. As error in the giving of instructions on the part of the State is not assigned in the motion for new trial they are not before us for review.
The defendant requested three instructions. The first was to instruct the jury to find the defendant not guilty. The other two. instructions are as follows:
“2. The court instructs the jury that although you may believe from the evidence that the defendant, John Long, took part in the difficulty in which Joe Butt-ram was stabbed and killed by Rankin Long, yet before the defendant could be convicted of the offense charged in the indictment in this cause, they must find that there*385 was a common purpose in the minds of Rankin Long and John Long, the defendant herein, to kill said Joe Buttram, and that the stabbing and killing of Joe Butt-ram by Rankin Long was done in the accomplishment of such common purpose, or that such stabbing and killing of Joe Buttram was done by said Rankin Long-in accomplishment of a purpose in the mind of Rankin Long to kill said Joe Buttram, and that the said defendant, John Long, had knowledge of such purpose of said Rankin Long, and that he, defendant, did some act, such as striking deceased or aiding, abetting, counseling, encouraging or commanding the said Rankin Long in the accomplishment of such purpose.
“3. The court instructs the jury that even though they believe from the evidence that the defendant, John Long, engaged or took part jn the fight or difficulty in which Joe Buttram was stabbed and killed, yet this fact alone is insufficient to convict the defendant; under the indictment in this case it must further be shown by the evidence, to the satisfaction of the jury, beyond a reasonable doubt, that he, the defendant, with knowledge of the intention of Rankin Long to do said stabbing and killing, aided, abetted, counseled, encouraged, advised or commanded the said Rankin Long to stab and kill said Joe buttram, and unless this proof has been made,- they must find said defendant, John Long, not guilty, although he, said defendant, may have been present, and may have been engaged in the difficulty when the stabbing and killing took place. ’ ’
A comparison of these instructions number 2 and 3, with those given by the court of its own motion will show that the subject was fully covered by the court’s instructions numbered 2, 3 and 6. All that was proper to be said in those instructions had already been said by the court and the failure to repeat it was not error, to say nothing of the inconsistency of the defendant
YII. It remains now only to consider the refusal of the first instruction asked by the defendant, to-wit, an instruction to acquit the defendant under the evidence. The learned counsel for the defendant in this court asked that the defendant be discharged because of no evidence sufficient to convict him. That the evidence presents a hopeless case of conflict must be conceded. If the testimony of the defendant himself and his witnesses is to be believed, he was not guilty of any offence, he did not take part in the difficulty in which young Buttram was stabbed, and did not come out of the church until after the young man had been fatally stabbed. Moreover, he testifies that he did not incite his brother “to stay with the deceased” as testified to by the other witnesses. On the other hand, if the State’s witnesses are to be credited, an entirely different case is made. According to that evidence, the defendant and his brother Rankin Long and the two Clymer boys attended the meeting at the church on the night of the homicide together. The circumstances
"We have patiently gone through, all the assignments of error and read the testimony, and in our