173 Mo. 681 | Mo. | 1903
The defendant, Mayo Rodman, was indicted at the December term, 1900, of the circuit court of Callaway county, for murder in the first degree, of Charles Davis, in Callaway county, on October 25, 1900. He was duly arraigned and pleaded not guilty in the Callaway court.
Afterward, in February, 1901, he made application in vacation to Judge Hockaday, the judge of that circuit court, for a change of venue from said county, on account of the prejudice of the inhabitants of Calla-way county against him, and this application was sustained, and the change awarded to Randolph county in the same circuit and the clerk was directed to transmit a complete transcript of the record to the clerk of the Randolph Circuit Court, which was done, and the transcript was filed in the latter court February 11, 1901. The cause was continued at the March term of the Randolph court, and was tried at the September term, 1901, and resulted in a verdict of guilty of murder in the second degree, and his punishment assessed at twenty-five years’ imprisonment in the penitentiary. After motions for new trial and in arrest were filed and overruled, the defendant was sentenced in that court.
The homicide out of which this prosecution grew occurred on October 25,1900. The defendant, Rodman, and Charles Davis, the deceased, resided on adjoining
The matter was taken before the grand jury and deceased was discharged. Prom that time on a very bitter feeling existed between the deceased and defendant. Threats were indulged in by both sides. Some weeks before the killing of deceased defendant procured a new Smith & Wesson revolver and said on different occasions that if deceased ever assaulted him or crossed his path he intended to kill him.
On the afternoon of October 25, 1900, deceased was engaged on his farm, working at his corn pens, stretching wire around them, and his son, Nelson Davis, seventeen years old, was plowing in the field adjoining the pens, about a quarter of a mile, distant. The deceased had one mule that he was using to pull the wire up to the pens. The son could see his father at work. About sundown the boy quit plowing a little before his father did. He saw his father stop work and start home, and the boy' also started to the- barn with his team. When within fifteen or twenty feet of a gate through which he had to go to reach the stables, the son heard a shot fired. He looked toward his father and saw him jump or slide off of his mule and the mule
As defendant shot the last shot, he called to the son, Nelson, and said, “I dare you to come up here.” When the first shot was fired, Mrs. Davis heard it and ran out and ran to her husband. According to the State’s evidence the deceased had his back to defendant when the latter shot him. On the part of defendant he testified that deceased was approaching him with an uplifted ax in his hand, and his other hand at his pistol pocket and cursing, abusing and threatening him, and remembering the former difficulty between them he shot him in self-defense.
On the part of the State, William Black testified he was at the home of Rodman the next morning after the shooting and defendant was in charge of the sheriff who permitted the defendant to go to the barn. Black walked with him and said to him, “Mayo, how did it happen?” “Where did it occur?” Defendant answered : ‘ ‘ East of the dead tree. I was there and Davis was there on his side of the fence and he camp running along there with hip ax drawn and I pulled my pistol and shot three times in succession.” He said, “Davis aimed to turn, and he shot three times." He said “the second shot did it. ” ' '
Mrs. Davis, the wife of deceased, testified that when she reached her husband he was dead and she straightened out his limbs and put a shawl over him. In turning him she found he was lying on an ax, and she pulled it out and threw it aside. The testimony further showed he had sent to the house for the ax to use it in his work about the corn pens that afternoon. The evidence on part of defendant further tended to prove several other assaults by deceased on defendant between the shooting in October, 1899, and the fatal encounter on October 25, 1900.
The court fully instructed the jury on murder in the first and second degrees, manslaughter in the fourth degree and self-defense, and on all other propositions of law arising in the case which were necessary. Indeed, no objections are urged in this court to the instructions given by the court of its own motion, and none asked by defendant were refused.
, The facts upon which a reversal is sought will be noted in connection with the several assignments of error.
I. The main insistence of the defendant is that the circuit court of Randolph county had no jurisdiction to try this case, first, because the transcript from the Callaway court was not properly or legally certified by the clerk of that court.
Section 2586, Revised Statutes 1899, provides that, “Whenever any order shall be made for the removal of any cause, under the foregoing provisions, the clerk
The certificate of the clerk of the circuit court of Callaway county to the transcript sent to the Randolph court is as follows:
“State of Missouri, County of Callaway, ss.
“I, A. M. Jameson, clerk of the circuit court within and for the county and State aforesaid, do hereby certify that the above and foregoing is a full, true and complete transcript in the above entitled cause as full as the same remains of record in my office.
“Witness my hand and official seal. Done at office in the city of Fulton, county and State aforesaid, this February 7, 1901.
“(Seal.) A. M. Jameson, clerk.”
The transcript itself contained the opening order of the circuit court of Callaway county on December 10, 1900, showing the presence of the judge of said court, Hon. John A. Hockaday,. the prosecuting attorney, sheriff and clerk; the administration of the oath to the sheriff and his deputies in regard to summoning jurors; the impaneling of the grand jury; and then on the 13th day of December, 1900, the return into court of an indictment against Mayo Rodman for murder, and of the delivery of a copy thereof to the defendant’s counsel, and then follows a copy of the indictment itself; that afterwards on the 15th of December, 1900, the defendant was duly arraigned and entered his plea of not guilty, and the continuance of the case till the next term of the court. The transcript then contains a copy pf the petition for a change of venue in vacation
The certificate is a substantial compliance with the statute. The statute requires a full transcript, but the clerk in addition certifies and properly that it is a true and complete transcript. It would seem that the omission of the words “and proceedings” is the basis of the contention, but as the proceedings in a court of record can only be known by its record, and as the clerk certified a full and complete copy of the- record, he certified everything that he was authorized to do and that was sufficient.
But if there had been an insufficient certificate it' would by no means have followed that the circuit court of Randolph county had no jurisdiction of the' case. On the contrary, it would have been entirely competent for the circuit court of Randolph county to have made a rule on the clerk of the Callaway court to have perfected his transcript by a proper certificate. The power and the right to so order necessarily admits jurisdiction in the court making such order. Nothing is better settled than this. [State v. Bell, 136 Mo. 120; State v. Haws, 98 Mo. 193, 194; Henderson v. Henderson, 55 Mo. 534; Laporte v. The State, 6 Mo. 208.]
The mere inaccuracy of the clerk in certifying a transcript does not affect the jurisdiction of the court to which the cause is ordered removed. It is the order pf removal that divests the court making it of its jurisdiction. [Railroad v. Railroad, 118 Mo. loc. cit. 619.] Nor is this principle inconsistent with the rule that during the term and before the change of venue is certified, the court may set aside its order. [State v. Noland, 111 Mo. 488; State v. Daniels, 66 Mo. 192.] We must therefore hold that the circuit court of Randolph county was fully possessed of jurisdiction to hear and determine the case.
II. The next proposition urged by defendant is that the circuit court had no- power to permit the trans
In their brief the learned counsel for defendant state the transcript was withdrawn and the original indictment substituted. This is a misapprehension. Nowhere in the record was there any offer to withdraw the transcript nor was it allowed. To properly dispose of the contentions by defendant, we proceed to examine them in their order.
First. It- is insisted that it was not competent to prove the spoliation of the transcript by parol evidence. This is a mistake of fact. What the court permitted the prosecuting attorney to do was to produce the original indictment of the Callaway court in the hands of the lawful custodian thereof, to-wit, the circuit clerk of that county; having proved he was such clerk the State had him identify the original indictment, which on its face disclosed that there was no line through the words “of which. ’ ’ This original record was the highest' and best evidence of what that indictment was when preferred by the grand jury. It was record evidence, not parol evidence. While the proceedings of a court are provable only by its record, or by an authorized copy properly authenticated, it was very correctly observed in State ex rel. v. Maloney, 113 Mo. 371, that “this general rule carries with it the corollary that verbal testimony may sometimes be requisite to identify as the record a particular document.” [Walter v. Belding, 24 Vt. 658.]
This was all Mr. Jameson was called to do. He identified the paper offered in court as the original indictment, a record of the court of which he was the clerk
“It is said, in books treating on evidence, that ‘the record itself is produced only when the cause is in the same court, whose record it is; or, when it is the subject of proceedings in a higher court.’ But this has reference to the ability of the court to compel the production of the record, and not to the question of its sufficiency as an instrument of evidence; if actually produced. The copy is receivable in evidence, not because it is better evidence than the original, but because it is presumed the original can not be obtained. ... It does not, logically, follow, however, that the records being obtained can not be used as instruments of evidence, for the mere fact of obtaining them does not change that which is written in'them. "Whether they are where they ought to be, or elsewhere, they are records of the court. . . . "What end of justice can be subserved when the records of one court are actually present in another court, by refusing to receive them in evidence and requiring them to be returned to their proper custody, there to be copied, and then receiving the copy in evidence? The facts proved must be precisely the same, whether the originals or copies are read in evidence, and it must, therefore, be totally unimportant to the party against whom the evidence is offered, which it shall be.”
The doctrine is well-nigh universal. [Gray v. Davis, 27 Conn. 447; Williams v. Conger, 125 U. S. 397; Day v. Moore, 13 Gray (Mass.) 522; Britton v. The State ex rel., 54 Ind. 541; Folsom v. Cressey, 73 Maine 270; Miller v. Hale, 26 Pa. St. 432; People v. Gray, 25 Wend. 465.]
The issue was made up on that paper, and what, possible benefit could have accrued to him to have sent the clerk back ti> Callaway to make a new copy of it?
When the court ascertained, as it necessarily did, that some one had trifled, with its records, it was its-unquestionable and inherent right and duty to restore the same to their original state. In this case, in view of the unimpeachable and conclusive nature of the evidence, the court could have properly directed its clerk by an order of record to that effect to erase the unauthorized line, but it arrived at the same practical result.
III. We come now to the other assignments of error. L. W. Bratton had testified that after the shooting of defendant and prior to .the fatal encounter, a committee of neighbors waited on deceased in regard to the difficulty between deceased and defendant. In the course of the cross-examination counsel for defendant inquired the names of the committee, and on objection the court excluded the answer, and defendant excepted. This was not error. The action of the neighbors, while highly commendable and praiseworthy, did not affect the duty or obligations that deceased owed to defendant, or vice versa. It was entirely immaterial who constituted the committee, and the purpose of the inquiry was never disclosed to the trial court, and is not apparent to us.
It is further alleged that error was committed in not permitting William Rodman, brother of defendant, to testify when he communicated to defendant certain threats made hy deceased against defendant. As the witness had already testified that immediately after the deceased had made the statements to him he told defendant, it would and could only have been a repetition of the same answer, and we doubt not that it was excluded on that ground alone, as otherwise it would have been competent and material. Having once answered the question, it was not error to decline to hear it again.
Exception was also saved to the action of the court in refusing to permit Jeff Hume to testify to certain threats by deceased in the presence of the witness. The-record discloses that when the defendant’s counsel framed the question so as to indicate the time and place when the alleged threats were made, the court overruled the objection and directed this witness to answer, and defendant’s counsel said, “I will excuse him from answering it.” Obviously there is no- merit whatever in this contention. It is hardly necessary to add it was
IY. Error is predicated on the remark of the prosecuting attorney. It appears that the prosecuting attorney, for some reason not disclosed, because we are not favored with the connection in which he used the words, said: ‘ ‘ Gentlemen of the jury, when a crime has been charged to have been committed, the defendant has the right to a preliminary examination before a justice of the peace. If the justice makes a mistake, the mistake may be corrected by the grand jury, and if the grand jury makes a mistake, then it may be corrected on trial in the circuit court, and if the circuit court makes a mistake, then it may be corrected by the Supreme Court, and if that court makes a mistake the Governor may pardon,” at this point and before any application of this statement had been made, defendant’s counsel objected, and the court sustained the objection and directed counsel to proceed, and keep in the record, and thereupon that line of argument was abandoned. No complaint was made that the rebuke was not severe enough if it merited any. But it is obvious that while it had no relevancy to the issue, the counsel made no misstatement of the law, and we are wholly in the dark as to what use hn intended to make of it, when he was stopped. It is too plain for serious consideration that this statement of what every intelligent citizen in the State knows to be the law, without making any application of it, is.no ground to reverse a judgment.
V. Finally, it is insisted the judgment is against the law and the evidence. No objection is made to the instructions and we discover none after a careful examination. Indeed we may say that more liberal and fa-' vorable instructions have never been given a defendant within our experience.
The evidence discloses a case of extreme bitterness
In the absence of some act on the part of deceased that evening showing a determination to renew the difficulty with defendant, the law will not justify his gratification of his revenge for the past indignities and assaults put on him by deceased.
On the other hand, if the jury had found and credited the evidence of defendant that deceased without provocation assaulted him with an ax and was close
After a careful review of all the evidence and the law as declared by the court, we are unable to find any error which would justify us in reversing the judgment, and it is accordingly affirmed.