194 Mo. 326 | Mo. | 1906
This cause is here upon appeal by the defendant from a judgment of the circuit court of Cape
“The grand jurors of the State of Missouri, duly empaneled, sworn and charged to inquire within and for the county of Cape Girardeau, State aforesaid, on their oaths present and charge, that James Richardson at the said county and State, on or about the 22d day of August, A. D., 1904, in and upon one Wm. Bleckwendt, then and there being willfully, feloniously, on purpose, deliberately, premeditatedly and of his malice aforethought did make an assault, and with a dangerous and deadly weapon, to-wit, a shotgun, then and there charged and loaded with gunpowder and lead shot which he, the said James Richardson, in his hands then and there had and held, then and there willfully, deliberately, on purpose, premeditatedly and of his malice aforethought, feloniously, did discharge and shoot off, at, to and against the body of him, the said Wm. Bleckwendt, and with the shotgun aforesaid, and the leaden shot ■aforesaid, then and there feloniously and on purpose and of his malice aforethought, willfully, deliberately and premeditatedly, did shoot, strike, penetrate and wound him, the said Wm. Bleckwendt, in and upon the back and body of him, the said Wm. Bleckwendt, giving him, the said William Bleckwendt, then and there with the dangerous and deadly weapon, the shotgun aforesaid, and the gunpowder and the leaden balls aforesaid, so as aforesaid shot out of the shotgun aforesaid, by the force of the gunpowder aforesaid, in and upon the back and body of him, the said William Bleckwendt, divers wounds and one mortal wound of the breadth of one quarter of an inch, and the depth of three inches, of which said mortal wound the said William Bleckwendt then and there did die.
At the May term, 1905, of the circuit court of said county the defendant, James Richardson, and his wife, Phoebe Richardson, were jointly tried for the commission of the offense charged in the indictment. Defendant’s wife, Phoebe Richardson, was acquitted and he was convicted.
Upon the trial of this cause the evidence introduced by the State tended to prove that the defendants, James Richardson and Phoebe Richardson, were, husband and wife, and lived in a house about 150 yards from the place of the fatal difficulty. That Seehausen, Mortensen, May and Meyestedt visited the home of Mary LeG-rand on August 21, 1904, and took some beer with them. This home was a house-boat, situated on a slough of Sloan’s creek in a meadow in Dannybrook, a suburb of the city of Cape Girardeau, and was.about 100 yards from the public road. It was practically admit-
Mrs. Richardson did not testify; but defendant James Richardson did. In behalf of said defendant, the evidence tended to show that he had a little place in the surburbs of Cape Girardeau, owned a few cows and sold milk. That there was an unfriendly feeling existing between him and the LeGrand woman, he having made complaint charging her with running a bawdy house, to which she entered a plea of guilty. That defendant had some trouble with some people bothering his stock and milking his cows. That Mary LeGrand frequently visited his place at night and milked his cows. That on the night of this difficulty, defendant’s dog awakened him by barking and chasing someone out of the milk lot. When he got up he saw the LeGrand woman and some one else milking defendant’s Jersey cow. That these persons soon got up and left the milk lot; and defendant dressed himself and went down the road and
In rebuttal, the State proved by Meyestedt and others that they had only driven a very short distance from deceased and the LeGrand woman before they heard the gun fire; that in their opinion only about thirty seconds had elapsed.
At the conclusion of the evidence the court instructed the jury upon murder in the first and second degree, self-defense, reasonable doubt, etc. The cause was submitted to the jury upon the. evidence and instructions of the court and they returned a verdict finding the de- . fendant guilty of murder in the first degree as charged in the indictment, also a verdict finding the defendant, Phoebe Richardson, wife of the defendant, not guilty.
The instructions of the court will be given due consideration in the course of the opinion.
OPINION.
The record in this cause discloses many complaints by appellant at the action of the trial court as a basis for the reversal of this judgment. At the very inception of the consideration of this very important cause it is not inappropriate to say that many of the assignments of error are absolutely without merit, and many others are assigned which are not properly preservedhy the record as to render them subject to review upon this appeal. The serious results flowing from the enforcement of this judgment, should it be affirmed, have lead us to carefully scrutinize every detail of this record, and we will give the questions presented in it such attention and consideration as their importance require and merit.
I. The indictment in this cause properly charged the offense in such terms as have repeatedly met the approval of this court, and there was no error in the action of the court overruling defendant’s motion to quash such indictment.
II. There was no error committed by the court in overruling defendant’s application for a continuance. The granting or denying of an application for a continuance, as has often been ruled by this court, is a matter resting largely in the discretion of the trial court, and it is only where it is manifest that such discretion has been abused and not rightfully or judicially exercised that this court will interfere with the action of the trial eourt upon that subject. It is apparent from the disclosures of the record, as to the grounds alleged for
III. Defendant filed a motion to quash the panel of jurors returned by the sheriff to try his cause, assigning as reasons for such motion that the jurors were not selected from the entire county. This motion was by the court overruled, and it is upon this action of the court that appellant insists there was reversible error committed in the trial of this cause. It is sufficient to say of ■ this ground of complaint that it is nowhere called to the attention of the trial court in the motion for new trial, and therefore must be treated as having been waived, and is not subject to review by this court.
IY. Appellant complains at the action of the court in denying his application for a change of venue. It is only necessary to say upon this proposition that the record discloses an entire failure to conform to the requirements of the statute in respect to such applications. Section 2576, Revised Statutes 1899, requires that the petition of the applicant shall be supported by the affidavit of the petitioner and the affidavit of at least two credible, disinterested citizens of the county wherein such cause is pending. While the petition in this cause indicates that the applicants supported the petition by their affidavits, yet the record discloses an entire absence of any supporting affidavit by other witnesses as
V. Complaint is urged upon the ground of the misconduct of juror .Hinton, one of the panel who was selected to try this cause. The evidence upon the subject of his misconduct shows that he was a merchant and that his clerk brought him two letters and gave them to him in the presence of the sheriff; that one of these letters contained a check or draft from a bank-and the other letter was from the Elks’ lodge and simply had reference to some of the members that were to be initiated. This alleged misconduct was simply called to the attention of the trial court in the motion for a new trial and such motion was neither accompanied by the affidavit of defendant nor of the defendant’s attorney. It is nowhere made to appear at what time this alleged misconduct of the juror came to the knowledge of the •defendant or his counsel.
It was expressly ruled in State v. Robinson, 117 Mo. 666, that where misbehavior of a juror is charged as having occurred during the trial, it must affirmatively appear that the party complaining thereof did not know of the fact before the jury retired to consider of their verdict, and it was said in that case that this material fact not being disclosed in the affidavit filed, the statement of it in the motion for new trial is no evidence of its existence. If the complaining party knew during the trial of such misbehavior it was his duty to call the immediate attention of the court to it and not take his chances on a reversal based on such ground. [State v. Robinson, 117 Mo. l. c. 666; 12 Ency. Plead. & Prac., 558; State v. Barrington, not yet reported.]
It was said in discussing a complaint similar to this one, as to the misconduct of a juror, in State v. Hunt, 141 Mo. l. c. 637, that, “Moreover the motion, for a new trial upon the ground suggested in the proposed
With the disclosures of the record as our guide, there was no error in overruling the motion for new trial on this ground.
VI. This leads us to the consideration of the most serious ground for a reversal of this judgment and sentence disclosed by the record, that is, the admission of incompetent and improper testimony against the defendant. The record discloses that Albert Sheute was introduced by the State and he testified that he and his wife were in the town of Jackson where the defendant, James Richardson, and his wife, Phoebe Richardson, were confined in jail, and this witness testified that he and his wife wanted to see them. They went over to the jail and this witness states, in answer to a question, that£ £ Mrs. Richardson said' she saw them coming towards the gate out there and her husband went there; as they got there they got in a quarrel, and said her husband said he wanted to shoot; she said she didn’t want him to shoot, she begged him not to shoot (and Mr. Richardson said that’s not right, and Schade said could not talk more in jail, nothing more was said).” The following further inquiry was made of this witness by the State as to what Mrs. Richardson said:
Q. You speak in such an undertone I do not understand you, and I do not think the jury do-. What did she say — that who wanted to shoot? A. Mr. Richardson wanted to shoot, she said not to shoot.
Q. Shoot who? A. Well, that fellow Will Bleckwendt.
Q. Now let me see if I understand you right. Mrs. Richardson said that her husband wanted to shoot
Court: Let the witness state.
Mr. Danes: If I cannot hear I want to know what he says.
Court: I think the jury heard it. It is not necessary to repeat it.
Q. What did Mr. Richardson say? A. He says , let him tell it, it was not right, and Mr. Schade said could not have more talk in jail, not to say any more, and that was all said.
We are unable to conceive upon what theory this testimony was admissible. It was not admissible on* the ground of a silent admission by reason of the statement of Mrs. Richardson in his presence, for the reason that the witness who detailed the conversation says that this defendant said that the statement was not right, and wanted to make it himself, and Mr. Schade, who evidently was the officer in charge, would not permit any more talking between them. It was not admissible simply as an admission against Mrs. Richardson, for the statement was in her favor; she expressly said that he did not want him to shoot, and it will further be oberved that the court, in admitting this testimony, did not, either by suggestion, or otherwise, limit its application to her.. That this testimony was damaging and injurious to only one of these defendants, and that was the defendant who was convicted, is too' clear for discussion. This testimony was directed solely against the defendant James Richardson, and no one else, and was inadmissible for two reasons: First, because the defendant said at the time that the statement was not right, and therefore there could be no acquiescence or assent to it; secondly, Mrs. Richardson, who was making the statement against this defendant, was his wife. She was incompetent as a witness to testify to such statement so made, and it necessarily follows that if she could not make the statement as a witness she could
To this testimony the record discloses a timely objection and exception. We can see no difference in the admission of this testimony in the form of statements made by Mrs. Richardson to witness Sheute'and in introducing Mrs. Richardson herself as a witness to testify against the defendant, which it must be conceded would have been manifestly improper and erroneous. It is clear that the jury could have only considered this' testimony as against the defendant James Richardson, for it had no application to anyone else. It will be observed from the record in this cause that the court very properly excluded, as against this defendant, James Richardson, all statements made by his wife not in his presence, and the record discloses that this is the only statement made by Mrs. Richardson in the presence of the defendant.
Emphasizing the error in admitting this statement, the court, by instruction No. 7, practically left it to the jury to determine whether or not this statement was assented to or acquiesced in by the defendant. The jury are told in that instruction that what Mrs. Richardson said cannot be used against the other defendant, James Richardson, unless assented to or acquiesced in by him.
It was ruled in the case of State v. Young, 99 Mo. l. c. 674, that a defendant who was under arrest was in no position to make any denial as to what might be said by others in his presence, and that his silence'under such circumstances would not warrant any inference against-him. [Wharton’s Crim. Ev., see. 680; Com. v. Walker, 13 Allen 570; U. S. v. Brown, 4 Cranch (C. C.) 508; Com. v. Kenney, 12 Metc. 235; Rex v. Appleby, 3 Starkie 33; Bob v. State, 32 Ala. 560.] To the same effect is case of State v. Foley, 144 Mo. l. c. 618, where this court approved the ruling in the Young case, and, in discussing this proposition, said: “Of course, there are cases in which silence of a party suspected of crime is evidence against him, but to give such silence the effect of an admission the party must be in a position to explain and it is the settled law of this State that a defendant’s silence when charges are judicially made against him or he is under arrest can not be shown against him.”
In view of the well-settled law upon this subject we see no escape from the conclusion that the admission of Mrs. Eichardson’s statement at the jail to witness Scheute, which amounted to nothing more nor less than permitting her to testify against her husband, must be held error for which the judgment must be reversed and cause remanded.
It will be noted that the law, as applicable to the general reputation of a defendant or a witness, affecting their credibility, makes a distinction between general moral character and general reputation for being a
In State v. Nelson, 101 Mo. l. c. 468, a witness by the name of Ferrill had testified for the State and the defendant offered testimony tending to show that he had the reputation of being a rash, dangerous and turbulent man when in liquor. This testimony was excluded by the trial court, and on this point, Judge Black, speaking for the whole court, said: “Nor was there, any error in excluding evidence offered by the defendant to show that Ferrill, one of the witnesses for the State, had the reputation of being a rash, dangerous and turbulent man when in liquor. We do not see for whát purpose this evidence was offered, unless it was to discredit the evidence given by Ferrill, and it was certainly not competent for that purpose. ’ ’
Upon the subject of instructions, it is sufficient to suggest that, upon the retrial of this cause, whatever grades of the crime the defendant’s testimony may tend to prove should be covered by appropriate instructions based upon his testimony. It may be that Iris testimony, in view of the testimony on the part of the State; may not be true; however, he is entitled to instructions presenting the grades of crime to which his testimony is applicable. We, of course, cannot foreshadow what the testimony will be in the retrial of this cause; however, we take it that in the event that the defendant testifies that there was a personal encounter between the deceased and the defendant’s wife, and further testifies
We have thus given expression to our views upon the questions presented by the record. The penalty oC this judgment can only he justified and enforced by a trial that is absolutely free from any substantial error. We have indicated the errors during the progress of the trial, for which the judgment in this cause should be reversed. Nothing remains to he said except to announce the conclusion, that for the error herein pointed out, the judgment should he reversed and the cause remanded for a new trial, and it is so ordered.