95 Mo. 474 | Mo. | 1888
On the twenty-third day of July, 1885, the defendant and one Rousey P. Tallent were living in the same neighborhood in the Miami bottom of the Missouri river in Saline county about six miles from the town of Miami. Both went to the town of Miami in the morning of that day, Tallent returning home about noon and Rider, the defendant, about four o’clock in the afternoon. During their absence, a woman who is sometimes called Mrs. Moore and sometimes Mrs. Rider, in the record, who was examined as a witness by the state
The evidence for the state tended to prove that thereafter he armed himself with a double-barreled shotgun; afterwards procured a revolver, and about dusk proceeded towards Tallent’s home for the purpose of killing him. ,The evidence for the' defendant tended to prove that after he got the shotgun, at the house of' his brother-in-law, Mr. Cockrill, he went in search of his wife, going first to the home of a Mr. Merrill, who lives but a short distance from Tallent’s, and Rider, in his evidence upon the stand, gives the following account of what transpired after he got the gun: “I got me a shotgun there and came on back ; passed Mr.' Bristoe’s and went down to Mr. Merrill’s, and me and Mr. Merrill went to this path leading from the river to Mr. Tallent’s. When we came to that path which ran north and south, Mr. Merrill stopped and I went on in the direction of Mr. Tallent’s home, and went to the south part of his-house, and looked to see if 1 could learn anything about
At the September term, 1885, of the criminal court of Saline county, the defendant was indicted for the homicide and in November was tried, found guilty of murder in the first degree, and was sentenced to be hanged.He appealed to this court, and at the October term, 1886, thereof the judgment was reversed and the cause remanded. 90 Mo. 54. At the March term, 1887, of the criminal court, defendant’s application for a change of venue on account of the prejudice of the inhabitants of Saline county was overruled, and in January, 1888, he was again tried in that court, and again found guilty of murder in the first degree, and from the judgment and sentence then rendered, after an unsuccessful effort for a new trial and in arrest of judgment, he again appeals to this court, assigning various errors that will be noticed in their order.
I. On application for a change of venue the weight of the evidence was that the defendant could have a fair trial in Saline county, nor is the action of the court in overruling the application urged here as error. On
II. It is urged that the court erred in failing to give the jury instructions defining any degree of homicide below murder in the first degree and in giving instructions two and three as follows :
“2. The court instructs the jury that if they believe from the evidence, that, prior to the killing of Tallent, the defendant, Greorge M. Rider, prepared and armed himself with a gun and went in search of and sought out Tallent with the intention of killing him or shooting him or doing him great bodily harm, and that he found, overtook, or intercepted Tallent while the said Tallent was on his way home from the Missouri river, in the county of Saline, and state of Missouri, and then and there did wilfully, deliberately, premeditatedly, and of his malice aforethought (as these terms are defined in the first instruction for the state), shoot at and kill Tallent, and at the time of said shooting Tallent was not then making any threats of violence against defendant and was not attempting to assault the defendant, and that defendant had no reasonable cause to apprehend immediate danger to his person from Tallent, then there is no self-defence in this case of which the defendant can avail himself and the jury should convict.”
“3. Although the jury may believe from the evidence that, prior to the time he was shot, the deceased had made threats against the defendant, yet this fact alone does not justify, excuse, or palliate the offence of murder, provided the jury shall further believe from the evidence that at the time deceased was shot he made no threats against the defendant, and made no attack or assault upon defendant, and made no demonstration of violence against defendant.”
The evidence of the defendant tended to prove that, with like knowledge and calmness of mind, he in like manner prepared himself, and went to that scene with no other feeling or motive than to find his wife, or
In the third instruction the óourt did not undertake to lay down the law of self-defence; the law on that subject was properly and favorably declared in two instructions given for the defendant. The jury were simply told in this instruction that the homicide could1 not be justified by the previous threats of the deceased alone, unaccompanied by any hostile demonstrations at the time, nor can anything therein contained be fairly construed to intimate to the jury that such threats might not be considered by them for any legitimate purpose-
III. There was no error in refusing defendant’s second instruction which was upon the law of justifiable homicide, and which was fully covered by two other instructions given for the defendant in unobjectionable phraseology.
IY. There was no error in admitting the evidence of Milton Campbell, who, about dusk on the evening of the homicide, and within half an hour thereof, met the defendant with his gun, on the road, within a quarter of a mile of' Tallent’s house, and who testified that defendant drew his gun on him and compelled him to give him (defendant) his pistol. Deliberation and premeditation are essential elements of the crime with which the defendant was charged ; preparations beforehand of the means by which to perpetrate the homicide tend to prove the existence of these elements. The state had the right to show that the defendant armed himself in preparation for the commission of the homicide, and although in that preparation he may have committed another crime, the evidence thereof was none the- less admissible, and in this case, Avhere the pistol was procured Ayithin half an hour of the time, and within a quarter of a mile of the place where the homicide was committed, by the defendant, while on the road to that place, partially armed already for the purpose, it may be said to be but a connecting part of the entire transaction commencing with the defendant’s arming himself with the shotgun and ending with the killing of the deceased, and for this reason also the evidence was admissible. State v. Nugent, 71 Mo. 136; Wharton’s Crim. Evid., secs. 31, 753.
It is not perceived how the evidence of Dobyns, that deceased told him about two weeks before the homicide that he had had sexual intercourse with Mrs. Rider, could in any manner tend to prove that deceased
The court in this, as in the former trial, after the defendant had testified as a witness in his own behalf, permitted the state to introduce evidence as to his general reputation for truth and veracity, chastity and morality. It was not held to be error then, and we see no good reason for holding so now. It is in harmony with all the rulings of this court on that subject since the adoption of the statute permitting a defendant in a criminal case to testify in his own behalf. State v. Rider, 90 Mo. 54. In conducting the examination of witnesses on the question of character, the court and counsel met with the usual difficulty in getting the witnesses to answer the questions properly, but, upon the whole, we find no avoidable error in the examination prejudicial to the defendant.
There was no error in the action of the court in sustaining the objection to the remark of counsel for the defendant, which, in the connection used, might be construed as a reflection in offensive terms upon the fairness of the court, and which gave no additional weight or force to the argument which that remark concluded, but to which it was superfluous.
Finding no error in the record in this case which calls for a reversal, the judgment of the criminal court is affirmed.