258 Mo. 315 | Mo. | 1914
From a conviction of the crime of murder in the first degree and the imposition of a life sentence, defendant appeals.
The information charges defendant, Joe Prince, as principal, and Arthur Prince and William Prince as accessories before the fact, with the murder of one Charles Jordan in Laclede county .on May 31, 1913. A severance was granted and defendant was tried separately.
The family of defendant consisted of his father, Arthur Prince, and several brothers who resided on a farm near the village of Pease in Laclede county. The deceased resided on an adjoining farm about seventy-five yards distant from defendant. There is a lane leading from the village of-Pease to the farms occupied by defendant and deceased, whiph lane they used in common for a distance of about one hundred and fifty yards, where a gate opened into the field of deceased. The lane extended beyond said gate to the home of defendant.
There is only slight evidence of ill-will between defendant and deceased prior to the evening of May 30,1913, at which time they engaged in a quarrel about a hog belonging* to defendant which had gotten into the field of deceased. According to the State’s witnesses defendant cursed and threatened to kill deceased on that occasion; while according to defendant’s witnesses. deceased, during* that quarrel, called defendant vile names and threatened to kill him. The wife of deceased testified that the quarrel and the accompanying threats made by defendant so alarmed her that she carried! a shotgun to deceased to enable him to protect himself. However*, neither the gun nor any other weapon was then used, and the quarrel ended without any physical violence to. either party.
On the following morning deceased attended a sale several miles from home, going and returning on horseback through the lane hereinbefore mentioned. About one o’clock that day the defendant, with his father, one of his brothers and two of his brothers-in-law, Tom Parriek and Walter Green, went to Pease on foot and remained there until about five p. m. At that
Five witnesses for the State testified that they watched defendant, his father and brothers-in-law as they started home; that they stopped' until deceased started to ride into the lane; that they then went on to the gate, which opened into the premises of deceased, where defendant and his father stopped again and remained until deceased arrived, alighted from his horse and walked up to the gate, when defendant, who was standing about eight feet away, shot deceased twice with a revolver without any provocation, so far as they could observe. The witnesses last named testified that they were about one. hundred and fifty yards distant, and that the lane was straight and the view unobstructed, so that they could see the shooting plainly. The father of defendant was standing some six feet away when the shooting occurred.
The only witness introduced by the State who was close enough to hear the words which passed between defendant and deceased immediately preceding the kill
“Q. Then what did they do ? A. Well, they just stopped there.
“ Q. Did you go up the road? A. Yes, sir.
“Q. Did you overtake them? A. Yes, sir.
“Q. Well, now just state to the jury what you ■heard, if anything, and the movements of these parties ? A. Well, they was standing around there talking to one another a right smart that evening, and when they saw Charley coming Arthur motioned— . . . Arthur motioned for the boys to come on he said, ‘ Come on and let’s go.’
“Q. Whp do you mean by the boys ? A. I guess he meant Joe.
“Q. Who did you mean? A. Arthur and Bud and Joe.
“Q. Did he motion to the defendant here? A. Joe was standing with him, and he motioned, I guess for Bud, and he said, ‘Come on boys, let’s go.’
“Q. Go ahead and state. A. They went on about half way between the mill and the corner of the fence and stopped and. waited until Charley went into the store and got his mail and come out and rode into the lane before they started on.
‘ ‘ Q. Then where did they go ? A. They went on up to the corner, I suppose.
“This last statement was objected to by the defendant; which objection was, by the court, sustained.
“Q. You was there and saw them, didn’t you? A. Yes, sir.
“Q. Where did they go? A. Up the road.
“Q. Where abouts? A. At the gate.
*323 “Q. What did they do? A. I wouldn’t say whether they stopped or not, because I was walking on ahead.
“Q. How far was you ahead of them? A. Well, I was about — when they got to the corner?
“Q. Yes? A. About like thirty yards, I guess.
“Q. Who was with you? A. Tom Parrick.
“Q. Did you stop? A. Yes, sir, I stopped when Charley rode up.
“Q. Now state to the jury what was done and said there? A. Well, Joe just kinder stepped out towards Charley and said, ‘Charley, I guess we had better settle our little trouble we had yesterday evening,’ and Charley said, ‘Don’t you guess you had better go on and let me alone?’ and Joe says, ‘I don’t know,’ and Charley says, ‘I think so,’ and Charley got down on the opposite side of his horse, next to the gate with his knife in his hand and got around about the horse’s head and Joe shot him.
“Q. Well, how were they standing, how was Charley standing with reference to facing Joe? A. He was standing with his left shoulder to him, with the side of his head.
“Q. What position was he in? A. Well, he was standing with his left shoulder to him, kinder looking down, I think.
“Q. Looking down at what part of the gate? A. He was looking- down; just looking down.
“Q. Did that end of the gate open or was it the other end of the gate that opened? A. The end where he was at opened. . . .
‘ ‘ Q. How close was Joe Prince to Charley Jordan when he fired? A. He was about four or five feet.
‘ ‘ Q. How close was Arthur Prince to Joe Prince ? A. About six feet of him. ...
“Q. Now, Mr. Green, where did you.pass Joe Prince and Arthur Prince? A. About half way between the mill and the corner at the gate.
*324 “Q. Did you hear any conversation between Arthur Prince and Joe Prince, his son? A. No, sir; not particular.
“Q. Well, did you hear anything? A. I heard Arthur say to Joe to let him have the gun, is about all. . . .
“Q. Arthur said to Joe, ‘Give me the gun,’ did he? A. Yes, sir.
‘ ‘ Q. How far was you from them when you heard1 that? A. I just walked up to them.”
Thomas Parrick, the other brother-in-law of defendant, testifying on behalf of defendant, said that he (witness) was at the home of deceased the night before the tragedy, and that deceased told him if they ever had any more trouble he would kill defendant, and that he (witness) communicated that threat to defendant.
Regarding what occurred at the time the killing took place Parrick testified as follows:
“Q. Now were you down at Pease Mill the day the shooting occurred? A. Yes, sir; I was down to Pease Mill.
“Q. Now just tell the jury what occurred down there? A. Well, we had started home and Charley overtook us at the corner where we go up to the Prince house, and he said, ‘Here is where I have got you, Joe.’
“Q. Who .said that? A. Charley Jordan, and he got off his mare on the opposite side and come around under the mare’s neck with his knife in his hand, and he had his knife up. at Joe and Joe shot him; he shot two shots, right straight along and Charley reeled back the first shot.
“ Q. I will ask you to state how far he got, Charley Jordan got before he was shot? A. Prom Joe he was about three or four feet. . . .
Q. You all walked together until you got up by the gate? A. Yes, sir.
*325 “Q. I will ask you to state if you stopped and waited for Charley Jordan there? A. No, sir; we didn’t stop at all, Charley Jordan rod'e up.
“Q. Did you hear Joe say anything there when the shooting occurred, or just before it? A. No, sir; I didn’t.
“Q. Now, I will ask you to state what was said that called your attention to the fact that he had ridden up there? A. Well, he says, ‘Here is where I have got you,’ to Joe, and I looked around and Mr. Jordan was getting off his horse.
“Q. Well, I will have you to state about what is your distance from Joe and1 Charley Jordan at the time you looked around? A. Well, I was about ten or fifteen steps on up the road.
“Q. Up the lane? A. Yes, sir."
“Q. Was Mr. Creen with you at the time; you say that Mr. Creen and Joe Prince walked up to the gate, did you? A. Yes, sir.
“Q. Now explain to the jury how Mr. Creen was ten or fifteen steps south of the gate, if Joe didn’t stop at the gate? (No answer.)”
The evidence of all the witnesses was to the effect that defendant’s open pocket-knife was seen lying at his feet after he was shot.
The State to establish malice and deliberation on the part of defendant introduced witnesses Elmer Hough and Earl Simpson, who visited the Prince home the night before the tragedy. Those witnesses testified that during their visit defendant expressed intense anger because deceased had cursed him and called bim a vile name the evening before; that defendant said he would “get Jordan (deceased) if he (defendant) had to go under the bed after him;” that he was willing to fight fair, but would not let deceased use a knife on him.
Everett Calton testified to having seen defendant at Pease the afternoon of the tragedy, and that the
OPINION.
Witnésses Hough and Everett were then called, and, over defendant’s objections and exceptions, testified that witness Parrick did make the statement attributed to him in the interrogatory above quoted.
“It is never permissible to cross-examine upon matters wholly irrelevant and collateral to the crime merely for the purpose of contradicting the witness on those points by other evidence. And1 if the cross-examiner shall happen to bring out irrelevant facts he is concluded thereby, and cannot contradict them. It is proper, however, to ask the witness if he did not at a particular time and place, which must be mentioned, give a different account of relevant facts to that which he gave on his direct examination. If he denies that he has- done so, a sufficient foundation is laid for his impeachment, which may then be accomplished by the testimony of a witness who was present and heard the contradictory statement. ’ ’
There is no part of the evidence which tends to prove that the killing was involuntary. Therefore the instruction for manslaughter in the third degree was properly refused. [State v. Watson, 95 Mo. 411; State v. Goldsby, 215 Mo. l. c. 54; Sec. 4462, R. S. 1909.]
The only entry in the record proper showing that the bill of exceptions was filed is as follows:
“On December 8, 1913, in vacation, the defendant filed his bill of exceptions.”
The certificate of the trial judge appended to the bill of exceptions (a copy of which we find m the transcript) recites that he approved said bill and ordered it filed and made a part of the record in the cause. The mere act of the clerk in filing the bill pursuant
Under section 2029, Revised! Statutes 1909, as amended by Laws 1911, p. 139', a trial judge may now approve, sign and order a bill of exceptions filed after the expiration of the time granted for filing same, and the clerk may file such bill in vacation without any previous order of the court, except the order of the judge in vacation embraced in his certificate showing that the bill has been approved and signed by him.
Since the amendment of 1911, above noted, the cases cited by the Attorney-G-eneral are no longer authority, and1 his contention must be disregarded;
Finding no error in the record by which the rights of defendant were prejudiced, the judgment will be affirmed. It is so ordered.