96 Mo. 382 | Mo. | 1888
The defendant, indicted for the murder of Davis C. Montgomery, was convicted of the offense of murder in the second degree, and he appeals here, alleging many errors. The history of the homicide, as disclosed by the record, whether favorable to the prosecution or favorable to the defense, is as follows: The deceased and the defendant, both farmers, lived on
When the wife and sons of Montgomery reached the scene of the homicide, he was found lying on the ground unable to rise; his face was cut and he had a gun-shot wound through one of his lungs. He said to his wife that he was bound to die; that he was not long for this world; that Gaines Parker and Prank Parker had waylaid him. After shaking hands with all, he said again, he must die. ■ “ He then prayed God to forgive his sins, and have mercy on his wife and children, and enjoined his two elder sons to be good boys and take care of their mother and the little children continuing in regard to the difficulty he said that Gaines Parker, the defendant, had met him in the road and said : £ £ I see you are trying to get into trouble with me about that wire?” Deceased replied: “No, I am not, I don’t want any trouble with you ; ” Parker then said : “You want the wire moved, do you?” To which deceased replied : “I don’t think that it is any more than right that it should be moved, but I don’t want any trouble with you; I am sorry that I ever had; I would not have had if you hadn’t said that Joe (deceased’s son) had no character;” the defendant then said to the deceased, that Prank (defendant’s son)
The evidence on the part of defendant was to the effect that upon the day of the difficulty, he and deceased met in the public road and entered into conversation as before stated; that upon defendant giving deceased the lie in response to some charge the deceased made, the deceased knocked him down, and inflicted on him such serious personal injuries as to cause him to call on his son Frank, who was then at his father’s house half a quarter of a mile distant, to come to his assistance; that Frank’s attention was called to . the cries of his father for help by his' mother, and that he immediately ran to the place of the difficulty, and when he got there he saw his father lying on his back in the fen ce corner, with blood running over his face and eyes, and that, at that time, the deceased, Montgomery, was on his father with his knees planted on his breast and striking him with his fist; that when Frank requested deceased to get off of his father, he refused to do so, but
The defendant stated that he honestly believed that it was necessary for him to shoot at the time he did ; that he saw Charles Montgomery have something in his hand which he thought was a hoe, and that the deceased had hold of him, and he expected him to be on him again ; that he could not see distinctly what Frank was doing or what was going on, and expected to be killed,, to prevent which he shot.
I. The issues in this case were few and simple. The charge was murder. The homicide was admitted.
Not less objectionable was testimony that about eight years before the trial Parker had been excluded from membership in a certain church. The only effect of testimony of this character was to distract the attention of the jury from the real issues in the case and to fill their minds with prejudice against the accused. All independent matters and all independent crimes which are disconnected from the crime then under investigation, which shed no light upon the alleged criminal transaction, are to be rigorously excluded for the reasons already given. State v. Tabor, 95 Mo. 585, and cas. cit. ; State v. Jackson, 95 Mo. 623, and cas. cit.
As indicated by the authorities, the rule is similar in such cases to that which prevails as to collateral facts affecting the credibility of an ordinary witness; in which case, “all inquiries into transactions of a remote date will, of course, be suppressed ; for the interests of justice do not require that the errors of any man’s life, long since repented of and forgiven by the community, should be recalled to remembrance and their memory perpetuated in judicial documents, at the pleasure of any future litigant.” 1 Grreenl. Ev., sec. 459. If the rule of exclusion prevails as to an ordinary witness, over whose remote transactions the law will cast the veil of its protecting oblivion, then a fortiori, should equal favor be shown to one whose character for veracity as well as his life or liberty are also at stake, as in the present instance. To permit the prosecution in such a case to rake up the ashes of long-forgotten rumors, in order to overthrow the moral character of a defendant-witness, is at war with public policy as well as common fairness. Such a course, if permitted, would destroy one of the strongest inducements to the reformation of the supposed offender, a matter in which the state has the greatest possible interest. There was error, therefore, in admitting testimony as to defendant’s reputation when living in Kansas at the remote period ref erred to.
IV. It is insisted that the state was improperly allowed to introduce evidence as to defendant’s general moral character; that the evidence should have been confined to the trait of character in issue. But it must be remembered that the state was attacking the general moral character of the defendant as a witness, and upon that footing testimony as to the general moral character of the defendant was undoubtedly competent: This is the well-settled law of this state. State v. Grant, 79
V. It is claimed for the defense that error was committed in the admission of the dying declarations of Montgomery. There doubtless was error committed as to what he said about the defendant having “waylaid” him, since this statement was the mere opinion of the deceased, and did not fall within the principle of the rule which confines the testimony touching such declarations to a case where the “circumstances of the death are the subject of the dying declarations.” But as to the residue of the declarations, I regard them as admissible under the rule laid down in State v. Draper, 65 Mo. 335, since the residue of these declarations was restricted to the act of killing and the transactions immediately attending it, and forming a part of the res gestae.
VI. If the dying declarations were properly admitted, then no reason is seen why the testimony of Gann was not admissible, to prove that he was in Parker’s field the evening after the homicide occurred, and just west of where it took place, and that “ the weeds looked like they had been mashed down ; looked like somebody had been down on their knees ; looked a good deal like a man got down on his feet, the toe of his boot was down there, and the knee, that is about what it looked like ; somebody had walked out to the fence.” This testimony was admissible, because the dying declarations established that Parker had said that “we came here to watch for you,” and those declarations had also established that on Parker calling to his son Frank, the latter “came running up out of the brush with a club and stones, and lots of them.” And since the dying declarations made out a case of lying in wait for the deceased, anything in corroboration of those declarations was also admissible.
VIII. The prosecution should not have been permitted to contradict Frank Parker, by the testimony of ■other witnesses as to what he swore at a former trial of the cause, without first laying the proper foundation by asking suitable questions as to time and place, etc. 1 ■Greenl. sec. 462.
IX. No error occurred in the action of Judge Woodson in relation to the application for a change of venue. Two special judges had been elected, and each one had declined to serve. He therefore, very properly, proceeding under the provisions of section 1881, set the case down for trial, and requested Judge Anthony to try the cause. Nor, under our former rulings, was any error committed by the judge, requested to sit, in denying the defendant a change of venue.
X. In so far as the instructions are concerned, the sixth instruction given at the instance of the state, very clearly recognizes the doctrine laid down in State v. Hays, 23 Mo. 287; State v. Packwood, 26 Mo. 340, that if the defendant brought on the difficulty, and in doing so was actuated by the design to kill the deceased, or to do him some great bodily harm, and in the progress of the difficulty did shoot and kill him, then there was no self-defense in the case. But the converse of that doctrine, that if the defendant brought on the difficulty but without such felonious intent that then, etc., was not declared in any instruction given. The correct formula for instructions in such cases is laid down in State v. Gilmore, 95 Mo. 554.
T he judgment is reversed and the cause remanded.