101 Mo. 514 | Mo. | 1890
The defendant prosecutes this appeal from a conviction of manslaughter in the second degree, had upon an indictment for murder.' The defendant, it is conceded by the evidence, shot and killed Henry Thatcher. The defense is justifiable homicide in self-defense.
The deceased was .a negro, and the tenant of the defendant, residing in a house on the defendant’s farm. There had been difficulty between the parties prior to the homicide, and there is much evidence to the effect that the deceased had whipped and kicked the defendant on several occasions; and that he had threatened to kill the defendant, which threats had been communicated to defendant. The deceased was a large, strong man, while defendant was quite the reverse. On the day-preceding the killing, the defendant borrowed a pistol and purchased cartridges to fit it, stating to the person from whom he got the pistol that some one had been stealing his horses and he wanted to look after
The evidence shows that in the early morning of the thirteenth of July, 1886, the deceased went to the pasture lot to get the horses. The defendant and one Newton Hughes, who lived with defendant, were in the pasture lot at that time. There seems to be no doubt but the parties had some difficulty at this time, and that defendant shot from seven to twelve times from two pistols which he had on his person, killing the deceased. Defendant went to the nearest justice of the ■peace, and gave himself up, and the justice in the course of two or three hours thereafter held a coroner’s inquest over the body. Persons who were at that inquest testify that they found the body in a ravine, ditch or washout, some two or three feet wide and eighteen inches in depth, lying close to a, pile of brush, with six gunshot wounds. The evidence tends to show that one ball passed through the apex of the heart, and another through the neck, breaking the spinal column. The expert evidence is to the effect that the heart wound was fatal, though the deceased might have walked a few steps after receiving it, but the neck wound would instantly stop all voluntary locomotion.
The defendant testified in his own behalf, that he spoke to deceased about the oats as the latter came up ; that deceased cursed him, and picked up a club and started at him; that he retreated towards Hughes for a short distance, and then commenced shooting, and that deceased fell within a few feet of that place.
Newton Hughes, who saw the whole affair, was not called as a witness oh this trial by the state or by the defendant, though it seems he was within reach of the process of the court. The justice who held the inquest testified that defendant and Hughes were present and both testified on that occasion; that Hughes stated,
It is sought to justify the admission of these statements made by Hughes on the ground that they are to be treated as implied confessions. The rule of evidence which allows the silence of a person to be taken as an admission or confession of the truth of the matters stated in his presence should be applied with caution, for it- is often much abused. The rule is based upon the assumption that the party is at liberty to speak, and proceeds upon the ground that the circumstances are such as to call upon him for a reply. The rule has no application whatever to statements given in evidence in a judicial proceeding; for in such cases he is not at liberty to interpose and contradict the evidence when and where he pleases. 1 G-reenl. Ev. [14 Ed.] sec. 197; 3 Am. & Eng. Ency of Law, 494. Nor does the rule apply where he is under arrest. State v. Young, 99 Mo. 666, and cases cited. A coroner’s inquest is a judicial proceeding (32 Mo. 375), and it follows that no inference can be drawn from the defendant’s silence on that occasion, that he admitted the truth of the matters
Some of these statements of Hughes, it is said, were made before the commencement of the examination of the witnesses; but so far as we can see they were conversations between Hughes and persons other than the defendant, and were not addressed to the defendant, or designed to induce any action on his part. It would have been an intrusion on his part to have interfered in these conversations to which he was not a party. It cannot be said that the natural and reasonable inference from his silence under these circumstances is, that he admitted the truth of the statements. The court should, therefore, have excluded them. 1 Grreenl. Ev. [14 Ed.] sec, 197; Kelley v. People, 55 N. Y. 565; State v. Young, supra.
The attorney general suggests that the admission of the evidence does not constitute reversible error. To this suggestion we do not agree. The court gave an instruction based on the theory that if the defendant fired the fatal shot after the deceased had turned and abandoned all attempt to assault the defendant, then the defendant was guilty of manslaughter. On this theory the illegal evidence was of vital importance ; for the expert evidence tends to show that the deceased must have dropped immediately after he received the shot in the neck. Nor does the evidence of the defendant taken at the coroner’s inquest, hereafter noticed, go to the full extent of these statements made by Hughes.
The next objection is that the court erred in allowing the state to read on this trial the evidence of the defendant as it was given and reduced to writing- and signed by him at the coroner’s inquest. No question is made over the relevancy of this evidence ; the question is, whether it was admissible at all.
The accused cannot, of course, be compelled to testify against himself; and it has'been ruled, under
One of the jurors at the inquest says he wrote down defendant’s evidence in his presence, read it over to him, and that he signed it. The defendant says he does not know that he made a statement to the jury ; that they handed him a paper and he signed it but did not read it over; that as far as he recollects he had not made a statement to the jury previous to the time he signed the paper. There is nothing in this evidence which shows, or tends to show, that defendant gave his evidence at the inquest by compulsion or otherwise than of his own volition. But it is further argued that
Thus far we have treated the defendant as standing in the position of one on preliminary examination, when he gave his evidence before the coroner. It certainly puts him in no better position to say he was simply a witness on that occasion.
For the error before noted, the judgment is reversed and the cause remanded.