196 Mo. 177 | Mo. | 1906
FOX, J.
This cause is here upon appeal from a judgment of the Howell Circuit Court convicting the defendant of manslaughter of the fourth degree. The information upon which this judgment rests was properly verified, and omitting formal part, is as follows:
“M. E. Morrow, prosecuting attorney within and for the county of Howell in the.State of Missouri,.informs the court that one Isom Morgan, on the 2d day*179 of August, A. D. 1904, at the said county of Howell, in and upon one Thomas Morgan then and there being, feloniously, willfully, deliberately, premeditatedly and of his malice aforethought, did make an assault,' and with a certain knife which he, the said Isom Morgan, in his two hands then and there had and held, him, the said Thomas Morgan, feloniously, willfully, deliberately, premeditatedly and of his malice aforethought, did strike, stab and thrust in and upon the side of the body, giving to the said Thomas Morgan then and there, with the knife aforesaid, in and upon the side of the body of him, the said Thomas Morgan, one mortal wound, of the length of one inch, of the breadth of one inch, and the depth of three inches, of which said mortal wound the said Thomas Morgan then and there died, and so the prosecuting attorney aforesaid says and charges that the said Isom Morgan, him,' the said Thomas Morgan, in the manner and by the means aforesaid, feloniously, willfully, deliberately, premeditatedly and of his malice aforethought did kill and murder, against the peace and dignity of the State.”
■ Prior to the trial the prosecuting attorney elected to prosecute defendant for murder of the second degree, instead of murder of the first degree, which is attempted to be charged in the information. Defendant entered his plea of not guilty and the trial proceeded.
The evidence on the part of the State tends to show substantially the following state of facts: That the defendant lived on a farm which cornered with the farm of deceased, and the defendant’s dwelling was near to said corner. That on the afternoon of the homicide the deceased was working in his tobacco patch near defendant’s fence, hoeing tobacco. That the defendant sent his children to run off some cattle belonging to one Chestnut, and deceased stopped said children, threatened to whip them, and ordered them back to defendant’s house. This seemed to anger defendant, who went down towards the tobacco patch, climbed two
The evidence for the defendant tended to show that he and deceased were not on friendly terms; that they had had frequent quarrels and fights. That deceased, who was a member of the Holiness church, and quite religiously inclined, tried to impose on defendant and tried to boss defendant’s children. That deceased had often threatened defendant and on two different occasions outsiders had to intervene and prevent deceased from injuring defendant. There was also evidence to the effect that deceased was a man of bad reputation, so far as peace and order were concerned.
In rebuttal, the State’s evidence tended to show that the deceased enjoyed a good reputation as a peaceable man; and that the reputation for veracity of Thomas Willis, one of defendant’s witnesses, was not good.
At the close of the evidence the court instructed the jury upon murder of the second degree and manslaugh
OPINION.
The record in this cause discloses three legal propositions for consideration:
1. It is insisted that the testimony of Rev. James Chestnut, who testified to statements made to him by the defendant, were inadmissible under the provisions of the statute which render incompetent any minister of the gospel or priest of any denomination, concerning a confession made to him in his professional character, in the course of discipline enjoined by the rules of practice of such denomination.
2. That the court erroneously declared the law upon the facts developed at the trial.
3. That the information is insufficient to support the verdict and judgment in this cause.
I. Upon the first proposition it is sufficient to say that we have carefully read the testimony of the minister, Mr. Chestnut, and it is manifest that the statements of the defendant, about which he gave testimony, do not fall within the provisions of the section of the statute relied upon by appellant. While it may he said that the witness was a minister and preached in the community
In the ease of Knight v. Lee, 80 Ind. l. c. 203, under a statute of that State, which in all essential particulars is like the statute of this State, the Supreme Court of Indiana, in discussing this statute, said: “The confessions, concerning which clergymen are incompetent to testify, are, evidently, such as are penitential in their character, or as are made to clergymen in obedience to some supposed religious- duty or obligation, and do not embrace communic ations to clergymen, ho / ever confidential, when not made in connection with o¡ in discharge of some such supposed religious duty or obligation; or when made to them while in the dis
We see no necessity for pursuing this subject further, for if the terms of the statute are to he construed to mean what they say, then that the testimony of Mr. Chestnut in this case does not fall within the inhibition of the provisions of that statute, is too clear for discussion.
II. It is next complained that the court erroneously declared the law upon the facts developed at the trial. Under the well-settled rules of practice, as has frequently been announced by this court, in order to warrant this court in reviewing an assignment of error, the error complained of must he properly preserved by timely objections and exceptions to the action of the court upon the subject before it. The record before us in this case discloses an entire absence of any objections or exceptions to the giving or refusing of declarations of law, hence following the rule as has been repeatedly announced by this court upon that question, the errors complained of in respect to the declarations of law are not before us for review.
III. This leads us to the consideration of the only remaining proposition, that is, as to the sufficiency of the information to support the verdict and judgment.
We have indicated substantially the facts developed at the trial, and the cause was properly submitted to the jury upon the facts. There is ample testimony to support the finding and verdict of the jury, and finding no reversible error the judgment of the trial court should he affirmed, and it is so ordered.