At thе September term, 1893, of the criminal court of Jackson county, at Kansas City, Philip Martin and Prank Lyle were jointly indicted for the murder of Eli Stillwell, by stabbing, on July 4, 1893. A severance was granted and the defendant herein, Philip Martin, was put upon his trial and the jury returned a verdict of murder in the first degree against him.
The defendant is a young negro man. Eli Stillwell was a white man, day laborer, and was married. He resided with his family at Seventeenth and Yine streets,
As if expecting some protest, the two negroes immediately halted and turned about, and the defendant Martin commanded Stillwell “to move on,” and as Stillwell did not obey this order promptly, advanced on him, as the sequel shoyrs, with an open knife in his hand, and, without further provocation, stabbed him with the knife, the blade of whiсh penetrated the left breast, cutting the arch of the aorta, and inflicting a wound from which Stillwell died that night. Either Martin or Lyle then attacked Stewart also, and he ran across the street to avoid them. Stillwell immediately
After stabbing Stillwell, the defendant Martin and his codefendant Lyle resumed their journey west, together. As they moved on, Martin, the defendant, was heard to say, “I fixed him,” and furthеr down the street Martin showed Lyle the knife with which the stabbing was done. It is of the kind the negroes of that city call “a switch,” and, it seems in very general use among them.
The defendant Martin was arrested next morning at his home and the knife, with the handle and blade both still fresh with blood, was found in his house. After defendant was confined in his cell in the city prison one of his fellow-prisoners inquired if he was not sorry he did that, and he replied, “No, I am glad I killed the white son of a bitch, and if I had it to do over, would do it again.”
At thе trial, defendant testified in his own behalf and said that Lyle did the cutting, and that the knife belonged to Lyle and not himself. He admitted fully and circumstantially his presence at the scene of the homicide, and that he and Lyle were together and had the altercation with Stillwell and Stewart, but says Stillwell called Lyle “a black son of a bitch,” and then Lyle stabbed him. In rebuttal his character for
The court* 1 instructed the jury on murder in the first and second degrees; on the credibility of witnesses, and reasonable doubt, and the presumption of innocence, and refused to instruct on manslaughter in the fourth degree, and self-defense.
I. Learned counsel for defendant assign as error the failure to instruct on manslaughter in the fourth degree. Their theory of the case is that the defendant did not do the cutting; that deceased was stabbеd by Lyle, who W'as only guilty of manslaughter in so doing, because he was provoked thereto by the vile epithet applied to him by the deceased, and in addition thereto that there was evidence tending to show that Stillwell and Stewart were the aggressors.
We are of opinion that there was no evidence in the case upon which to base an instruction for manslaughter. Stewart, who was present, testified that Stillwell was doing nothing, when Martin stabbed him. He says Lyle was on the outer edge of the sidewalk nearer to him, Stewart; and in this he is thoroughly corroborated by the witness Perkins, the paper hanger and painter, who says not only that Martin stabbed Stillwell but that “Stillwell was doing nothing.” The defendant was innocent not only of murder, but of manslaughter, as well, if his testimony is to be credited. He had not jostled deceased; deceased had applied no epithet to him. He did not return and enter into a difficulty with deceased, but stood by, a mere spectator, in no mаnner aiding, assisting or counseling in the killing of Stillwell, but, on the contrary, urging Lyle to come away.
If defendant’s testimony is to be the basis for the instruction, it is most clear that it would have been
II. There was no error in giving the fifth instruction. Itwas favorable to defendant.' It permitted the jury to find defendant guilty of murder in the second degree if they should believe Stillwell had, by opprobious epithets and abusive words, provoked defendant into a violent passion. The objection now urged against it that it did not submit, in connection w'ith the abusive words, the question of provocation provoked by actual violence, is manifestly untenable. There was no such evidence in the case. Defendant’s own testimony refutes the claim. The instruction was evidently predicated on Mary Marshall’s evidence, which the jury evidently did not credit.
III. Counsel concede that the seventh instruction is correct as an abstract proposition of law, but doubt its propriety in this case, but we think it was entirely appropriate.
IY. In the ninth instruction the court instructed the jury, among other things, that “if, upon the consideration of all the evidence, you conclude that any witness has sworn willfully falsely as to any material matter involved in the trial, you may reject or treat as untrue, the whole оr any part of such-witness’ testimony,” and this is assigned as error. It is not error
V. Counsel further insist that the court of its own motion should have instructed the jury as to the effect of a reasonable doubt on the degree of defendant’s guilt; in other words, that if the jury had a doubt as to the degree of defendant’s guilt, they should return a verdict for a lower degree. We think it evident, however, that such an instruction would have been prejudicial to the defendant and unauthorized by the law. The jury, under the instruction of reasonable doubt as given by the court, was not authorized to convict the defendant of any grade of homicide if they had a reasonable doubt as to his guilt of that particular grade; but under the modification desired by counsel, they would have been justified in finding defendant guilty of murder in the second degree, merely because they had a reasonable doubt as to his guilt of murder in the first degree. This negative manner of putting it is sanctioned by no authority. The jury were properly instructed that they must find affirmatively all the elements of murder in either degree, beyond a reasonable doubt, before they convict of either grade. The fact that they have a reasonable doubt as to the higher grade requires an acquittal of that grade, and if they have a reasonable doubt of the lower grade, they must acquit of that also. This the instruction told the jury, and it was clearly correct.
VII. The defendant comрlains that the state was permitted, over his objection, to ask his witness, Washington, how many times he had been in the county jail, on sentences for crime. An examination of the record does not disclose the ground of this objection, but, waiving the absence of a proper objection, there was no error in permitting the question and answer to it. It was most clearly asked for the purpose of honestly discrediting the witness, and it was unnecessary, under the circumstances, tо produce the record of convictions. State v. Miller,
VIII. After the defendant had testified that he recognized the knife offered in evidence, and had seen it at the picnic in the hands of Ernest Morgan, and that he himself had never had it in his hands until after he was imprisoned, charged with the crime, he was asked if it was found in his mother’s house, if he knew how it got there. An objection was made and sustained. Counsel now say they do not contend that the defendant saw Lyle have the knife, but that he would have tеstified to conduct tending to show that Lyle .placed the knife in his mother’s house; but no such offer as this was made to the court at the time the question was denied, and as defendant had disavowed ever having the knife in his possession, if he desired to throw the guilt on his codefendant, he should have disclosed his purpose. The mere refusal to hear the answer is not alone sufficient to constitute error. It is the duty of the party alleging error to establish it, at least prima facie. Aull Savings Bank v. Aull’s Adm’r,
Nor was' there -any error in refusing to permit defendant to tell what Lyle said' to him. It was no part of the res gestee and Lyle was not a party to the record, nor was it a contradiction of the testimony of any witness for the state.
IX. The witness Willet testified that he knew Eli Stillwell, the deceased; that on the night of the homicide he was going to his home about 11 o’clock; that he got off the Troost avenue street car, near the corner of Eighteenth and Harrison streets, and as he started down the street he heard Stillwell cry “police,” “police,” but thinking he was drunk, walked across the street from him, until he saw him fall between two planks on the side walk and heard him say “I am fainting,” “I am gone,” “catch me.” Witness then ran to him and they carried Stillwell into a saloon on the north side of Eighteenth street, just across the street from where Stillwell fell. As the witness come up to the fallen man, another man who had also came to him said: “Look how that man is cut,” and Willet saw the blood on him, and immediately someone said: “Better go after a doctor,” and the witness says he ran a block and a half to Dr. Hardin’s residence and rang the bell and the doctor put his head out of the window above and witness told him “a man was dying up there,” and asked him to come, and received the reply that he could not, and ran back to the saloon, and said: “The doctor can’t come,” and in a moment or so, an officer, who had arrived in his absence, in the presence of the witness Willet, asked Stillwell, “Do you know who did it!” and he answered: “Yes; two negroes, one a little yellow fellow.” No one had made any statement in his presence as to who did it. The trial
“The res gestee may be [therefore] defined,” says Dr. Wharton, “as those circumstances which are the automatic and undesigned incidents of a particular litigated act, and which are admissible when illustrative of such act. These incidents may be separated from the act by a lapse of time more or less appreciable. They may consist, as we will see, of sayings and doings of any one absorbed in the event, whether participant or bystander; they may comprise things left undone as well as things done. * * * In other words, they must stand in immediate causal relation to the act— a relation not broken by the interposition of voluntary individual wariness, seeking to manufacture evidence for itself.” 1 Wharton’s Law of Evidence, sec. 259.
This statement of the general rule has received the indorsеment of this court and of the supreme court of New Jersey in Hunter v. State, 40 N. J. L. 495, and of the supreme court of Pennsylvania in the recent case of Com. v. Werntz,
It has been wisely said: “The res gestee are different in different casés; and it is not perhaps, possible to frame any definition which would embrace all the various cases which may arise in practice.- It is for the judicial mind to determine, upon such principles and tests as are established by the law of evidence, what facts and circumstances, in particular cases, come within the import of the terms.” Lund v. Inhabitants,
As indicating what facts bring different cases within the rule, it is perhaps well enough to recall some of the best known. A leading one, and one cited with approval by this court, is that of the Com. v. M’Pike, (1849),
The decision in that case was cited, quoted, and followed in Brownell v. Railroad,
In State v. Sloan,
In Com. v. Hackett,
In Crookham v. State, 5 W. Va. 511, two witnesses testified they heard deceased calling for help, after dark, and on inquiring of him what was the matter, he answered that somebody was killing him, and was cutting him with a knife. “Charles Crookham has . stabbed me, he has killed me; for G-od’s sake run for the doctor.” The defendant moved to exclude the words, “It was Charles Crookham,” or “Charles Crookham has stabbed me,” but it was held that they were admissible аs a part of the res gestae, citing Hill’s case,
These cases sufficiently indicate the manner in
Here we have a citizen going to his home in the night. He is assailed by a ruffian and stabbed to the heart. Instinctively he cries, “Police, Police,” and is seen to stagger and cry out,” “I’m fainting,,” “I am gone,” “Catch mе,” and falls to^tbiiTground. The witness who testified to these, facets runs to his relief, finds him covered with Moo’d. Knowing that a physician resides only a block and a half down the street, he runs to his House, rings the bell and at once is answered the .doctor can not come. He runs back to the injured man. In this short interval, an officer has arrived apd finding the man prostrate and bleeding to death, ip quires, “Who did it,” and is answered by the dying man, “Two niggers; one a little yellow fellow.” No one has made any suggestion. As said by Judge Bigelow, this last statement may well be ■ deemed a part of the sentences he uttered immediately after the fatal stab was inflicted. They are not mere narrative, üfhey are uttered in the presence of a witness who has lieard his cries for the police, who has seen him ^tagger and fall covered with blood . and went at once to his relief, and found him bleeding to death. It was not, then, a mere narrative unsupported by the principal facts, but it is in direct сonnection with it and illustrative and explanatory of it. No sensible man would reject such evidence in his own affairs. We think the court committed no error in holding it competent.
But upon another ground it is perfectly clear that the admission of this evidence constitutes no ground
X. Another assignment is based on tfa.e testimony of officer Edwards. This officer arrested Lyip and was cross-examined by defendant’s counsel fully as to having obtained from Lyle the first information of Martin’s connection with the homicide. He was asked in regard- to Lyle’s statements, whether he had. not said he had been at Martin’s house that morning; and, in redirect-examination, the state’s attorney simply аsked the witness to tell just what Lyle did say to him. To this question no grounds of objection whatever are stated. It was nowhere objected that Lyle’s statements were not evidence against his codefendant or that it was not proper cross-examination of the matter elicited by the cross-examination.
The incompetency of the declaration made by Lyle after his arrest as’ against Martin, was perfectly apparent when defendant elicited it, but he saw fit tо waive all objections in his effort to obtain evidence in his own behalf and it is too late to raise that objection now in this court for the first time. Carney v. Carney,
Upon the whole, the case was carefully tried. The dеfendant was defended by counsel who were zealous in his behalf. Without cost to himself, he has been allowed to have a complete transcript of the record certified to this court. We have patiently gone through the record and find no error therein. The evidence fully sustains the charge that without any provocation he willfully, deliberately, premeditatedly and of his malice aforethought stabbed and killed an unoffending citizen, and the judgment of the criminal court is affirmed, and ordered that the sentence pronounced by the law be executed on Thursday, December 13, 1894.