278 Mo. 177 | Mo. | 1919
Lead Opinion
An opinion was originally prepared in this case by Walker, J. All of .that opinion was concurred in by the court with the exception of one paragraph thereof dealing with the question of the right of the prosecuting attorney to make a reply statement of facts to the jury at the beginning of the trial. It being therefore entirely unnecessary to redraft that portion of the opinion and the statement upon which all are agreed we will adopt that portion of the original opinion in this opinion. The portion thus adopted is as follows:
“Appellant was charged by information in the circuit court of Pike County with murder in the first degree. Upon a trial, he was convicted of murder in the second degree, and his punishment assessed at ten years in the Penitentiary. From this judgment he appeals.
“Walter Allison, the deceased, and the appellant were farmers living in the same neighborhood in Pike County. Allison was a single man, and the appellant was married, having a wife and children. For several months prior to the killing, deceased had been clandestinely meeting appellant’s wife. Appellant, upon being informed of this fact, on the day preceding the killing, requested the deceased to desist in his attention to ■his wife. This the deceased promised to do. On December 23, 1916, deceased, in company with Arvie Allison, his nephew, went to some mail boxes on a highway in the neighborhood, one of which belonged to the deceased and another to the appellant. They found the wife and daughter of the appellant at the mail boxes waiting for
“For the defendant, a witness named Lohse testified that from his home, one hundred feet, or more from the mail boxes, he saw the killing; that the deceased, when the appellant approached, had his left hand turned back, as though about to throw something. At this juncture, appellant fired the first shot; that the attitude of the appellant had not changed when the second shot was fired; that the pistol with which the shooting was done belonged to this witness, and immediately after the killing he went down and got it from the appellant, went to his house, and telephoned for help, and returned a few minutes later to where the deceased was lying in the road and assisted in conveying him to his home; that on one occasion prior to the shooting, he had discussed with the appellant the intimacy of the latter’s wife and the deceased.
‘ ‘ The fifteen-year-old daughter of the appellant stated that .when her father came ‘up and asked the deceased why he had not complied with his promise, the latter picked up a stone to throw it, saying, with an oath, ‘I will smash your brains out.’
“The instructions as to the grade of the crime were limited to murder in the first .and second degrees and self-defense.
“Where the killing is intentional, as contemplated by the statute cited, manslaughter in the fourth degree, under our rulings, is defined to be the killing of a human being in a heat of passion on reasonable provocation, without malice or premeditation, and under such circumstances as will not render the offense justifiable or excusable. [State v. Sebastian, 215 Mo. l. c. 80 and cases.]
“It is elemental that in the giving of instructions in cases of homicide, it is the duty of the trial court to declare the law upon all grades of the crime to which the testimony is applicable. If, therefore, substantial evidence has been adduced in this case, although it may consist of the defendant’s testimony alone, showing a state of facts, which if tru'e, would reduce the grade of the crime, it was the duty of the court to instruct the jury upon the grade thus shown. [State v. Heath, 221 Mo. l. c. 581.]
“The testimony to support the appellant’s contention . as to his right to the instruction for manslaughter in the fourth degree is that the deceased, with an opprobrious oath, said he would smash, appellant’s brains out, and picking up a stone, attempted to throw it at appellant, whereuppn the latter drew a pistol and shot the deceased through one of his legs* who fell to the ground, letting the stone drop at appellant’s feet. Appellant followed this up''with another shot, inflicting the wound from which death resulted. Whatever may' be the variant facts, under which instructions for manslaughter have been given in the different cases, it must appear, to authorize same, that there was reasonable provocation for the act of the accused.
“As to what constitutes reasonable provocation adequate to reduce the offense from murder to manslaughter is defined in State v. Conley, 255 Mo. 185,
“¥e held in State v. Barrett, 240 Mo. l. c. 169, where' the evidence showed that the deceased was advancing upon the defendant with a stick or club in his hand in a threatening manner at the time the shots were fired, that this1 did not constitute such an assault by the deceased as amounted to personal violence.
“In State v. Sharp, 233 Mo. l. c. 299, although there was much conflict in the testimony, it was shown that the shooting commenced, which resulted in the killing, upon an officer in citizen’s clothes drawing a pistol upon the defendant. In refusing the instruction for .manslaughter in the fourth degree, the court held that there was' no such personal violence offered to the defendant as to constitute such reasonable, provocation as would authorize an instruction for manslaughter in the fourth degree.
“In State v. McKenzie, 228 Mo. l. c. 396, 404, the deceased rushed at the accused with a large butcher knife; whereupon, the accused backed up against a door, and failing to get it open, drew a revolver and shot the deceased. It was held that these facts did not authorize the giving’ of an instruction for manslaughter in the fourth degree.
“Tn State v. Gordon, 191 Mo. 120, 125, the deceased, who was a much larger man than the accused,
“In State v. Gartrell, 171 Mo. 1. c. 520, it was shown that the deceased, after the use of opprobrious and insulting epithets, advanced on the accused with an iron wrench, when the latter struck him with the pole of an ax and killed him. These facts were held not to authorize the giving of an instruction for manslaughter in the fourth degree.
“In State v. Sumpter, 153 Mo. 436, the accused testified that he went into the field where the deceased was plowing and rode up to him, when the deceased said: ‘Didn’t I tell you I was going to kill you?’ That the deceased thereupon stopped his team, wrapped his lines around the plow handles, and started towards the defendant with an ax, who shot him. The court held that an instruction for manslaughter in the fourth degree was unauthorized.
“In State v. Meadows, 156 Mo. 114, 116, a number of witnesses testified that the accused started away, when the deceased fired at him, and was in the act of firing a second time when the accused turned and shot him. The court held that an instruction for manslaughter in the fourth degree was not appropriate, in that the defendant was guilty of murder either in the first or second degree, or that the killing was done in the necessary defense of his person. Instructions as to the grade of the crime were given in each of the cases above cited, as in the Meadows case. Upon this theory, the trial court declared the law in the case at bar. The other attendant facts which must be considered as a part of and hence explanatory of the killing, lend support to the correctness of this conclusion.
“Other than the sight of the deceased at the mail boxes with appellant’s wife and daughter, there existed no cause for that heat of passion suddenly aroused on the part of appellant which is a precedent condition to that reasonable provocation necessary to the existence of manslaughter in the fourth degree. On the contrary, the appellant, with that calculation characteristic of a more serious grade of homicide, went deliberately to the scene of the crime and began to upbraid the deceased, and the latter attempted the assult — to the testimony of which we give credence for no other reason than that appellant may have whatever benefit may arise from same in the giving of instructions. There is here no evidence of that sudden combat necessary to arouse the passions of the appellant to the realm of reaonable provocation. In its stead, we find him deliberately arming himself for deadly encounter, seeking the presence of his victim, and as the evidence justifies us in saying, baiting the latter with words, that some act of his may at least afford superficial excuse for the use of the weapon, conveniently at hand. The procuring of the weapon by the accused gives ground for the presumption that it was in preparation for. the commission of the crime. [State v. Sharp, 233 Mo. 269.] These facts afford no proof of the presence of any element sufficient to authorize the giving of the instruction asked. Furthermore, the appellant’s conduct immediately preceding the killing is clearly indicative of such a malign condition of mind as to preclude the giving of the instruction. There is no controversy as to the fact that the pistol used was a deadly weapon. That a weapon is deadly may be inferred from the fact that it produces death although there is no evidence of its quality or dimensions. [State v. Bowles, 146 Mo. 6.] The ordinary result of the use
“Actuated by malice in arming himself with the pistol, his immediate subsequent acts justify the presumption of the continuance of this state of mind. [Gunter v. State, 110 Ala. 24; Holland v. State, 12 Fla. 117; State v. Johnson, 23 N. C. 354.] In the presence of malice, there is no room for manslaughter. [People v. Borgetto, 99 Mich. 336; Jackson v. State, 74 Ala. 26; People v. Waysman, 81 Pac. (Cal.) 1087; State v. Tilly, 3 Ired. (N. C.) 424; State v. Johnson, 23 N. C. 354, 35 Am. Dec. 742.]
“The cases, therefore, of which that of Heath, supra, is a type, however definitely they may announce the doctrine that, upon the testimony of a defendant alone, an instruction for manslaughter is authorized, do not mean that where all the attendant facts show a higher grade of homicide or unqualified self-defense, that an instruction shall be given as is here insisted upon. [State v. Myers, 221 Mo. 598; State v. Barker, 216 Mo. 532.] In this connection it may be appropriately stated that even in the presence of that provocation claimed to have existed at the’ time of the killing this does not disprove malice. It only removes the presumption óf same which the law raises without proof. If, therefore, a deliberate purpose on the part of appellant to kill the deceased has been shown by his immediate antecedent acts, the provocation insisted upon as existing at the time of the fatal shot must be disregarded unless it has been shown that this purpose was abandoned before the killing. There was no such showing. The reason for the rule stated is, that where provocation intervenes between the manifestation of malice
“The reason urged in support of this contention, in the language of appellant’s counsel, is that the instruction complained of ‘improperly singled out the evidence or the lack of evidence of the undue intimacy between the deceased and defendant’s wife, and unduly and improperly brought this evidence of fact or the lack of it, to the attention of the jury by giving said instruction, and in particular referring to this evidence, to the prejudice of the defendant.’
“The language of the instruction does not sustain what is evidently meant by this condition, viz.: that the trial court erred in singling out or giving improper prominence to the testimony referred to. While it is true that a trial court cannot properly comment on the
“Evidence of an adulterous relation, in a case of the character of that at bar, is only admissible when the discovery of the same by the aggrieved spouse is so near the homicide as to afford no time for the passions thus inflamed to cool. [State v. Privitt, 175 Mo. 207; State v. France, 76 Mo. l. c. 685; Biggs v. State, 29 Ga. 725.]
“The adulterous relation, if it existed, was in the past and appellant had knowledge of it at least several
“V. It is insisted that error was committed in the admission in evidence of the dying declaration, which had been written out at the dictation of the deceased and signed by him.
Declaration “Dying declarations are - but a form of hearsay evidence. Our review of same is consequently subject to the same regulations applicable to other testimony concerning which the rulings of the trial court are assailed. If, therefore, we find that the objections to the declaration have not been properly made or preserved, so as to present a live record of same, they will not be entitled to our consideration.
“Preliminary thereto, it is not inappropriate to say that there is no merit in the objection to the declaration that it was not made in articulo mortis, with a full realization on the part of declarant of his impending dissolution.
“This is the testimony of the latter’s brother in that regard: ‘Well, I just went to him, I was* sitting on the bed, and I went up to him and asked him, I said, “Walter, what do you think about having a dying statement taken?”, and he said, “Do as you please, I have got to die,” and told Mr. Hawkins to go ahead and take his statement, and that was all that was said. ’
“Declarant’s statement as to his realization of his condition was made on December 27th. On the 29th he died. No qualifying facts or modifying statements lessen the cogency of this statement. Its probative force is sufficient to authorize the admission of ,the decía
“That the extent of the appellant’s objections to the admission of the declaration may be clearly shown, we set them out in full: ‘Mr. Ras Pearson, counsel for appellant: Well, wq object. Sufficient showing has not been made to render it [the declaration] competent. Several of the essentials necessary to render such a statement competent have not been shown.’
“After a statement by the court on its own motion, that it would exclude from the jury certain matter in the declaration, and admit same as modified, counsel for appellant further objected as follows: ‘Mr. Ras Pearson: We object to the declaration because a sufficient showing has not been made, and particularly they haven’t shown that the deceased, Walter Allison, was in a condition that his mind was such to comprehend what he was doing at the time; that he realized what he was doing; and that he had mentality enough to comprehend what he was doing; and that the mere statement of the witness doesn’t show that all hope was abandoned because he went on the operating table in two days after-wards, and I take it that a doctor would not have put a man on the table when there was no hope and no prospect of doing any good, or doing the patient any good, and we can at least indulge in the belief that these doctors — though perchance they might save this man’s life by taking him through an operation; at least, in this case we have their acts and deeds — by medical skill and medical science might prolong a life, and no one, save and except the deceased, who says there was no0show for him to live.’ After an inteiruption by the prosecuting attorney, counsel for appellant continued his objection as follows: ‘Mr. Ras Pearson: He goes on the operating table the next night or two days afterwards. It still shows they had some hope of pro
“Upon the ruling of the court that the declaration, as limited,. would be admitted, counsel for appellant continuing his objections, said: ‘Mr. Ras Pearson: I think the proof is too scant to put a layman on the witness stand and make the declaration. Now, this deceased had two doctors, and they were there daily, and if there is ground for a dying statement to be offered, it ought to be admitted with more solemnity, and this is not the best proof; not sufficient proof, and on that ground I object and save my exceptions.’ Whereupon, the declaration was admitted in evidence.
“The burden of appellant’s objections to the admissibility of the declaration is based on the ground that it was not sufficiently made to appear that the declarant realized that he was in articulo mortis. Neither from the express terms of these objections or by" reasonable implication can their meaning and purpose be extended beyond this. Under the well established and often repeated rule, therefore, that objections to. matters occurring during the trial should be made at the time of their occurrence and proper exceptions preseved, we are limited in the consideration of the admissibility of this declaration to the objections made thereto. Certainly if counsel for appellant had desired that other objections should be entertained, they would have been.preserved in a manner to entitle them to our consideration. That this was not their purpose is evident from the motion for a new trial, which simply states': ‘The court improperly admitted in evidence the dying declaration of the deceased, Walter Allison, and thereby permitted improper and illegal evidence to go to the jury.’ The meaning of this motion, although general in its terms, must be limited to the specific objections made in the record itself. Thus construed, it
“No question is involved here as to the general or specific nature of objections to the introduction of testimony, because there is no objection interposed other than that indicated. A consideration, therefore, of the subject-matter of the declaration is precluded, and we overrule this contention. ’ ’
“In reply to Mr. Pearson’s statement with reference to the character that he says he will show that Walter Allison bore, I want to say there is but one incident of that; I think the evidence will show you that Walter Allison was not in conflict with the State law, nor did he bear any such turbulent reputation or any such aggressiveness as Mr. Pearson would have you understand. We will show you, gentlemen, in respect to the evidence that Mr. Pearson says he will introduce here showing you that Walter Allison invaded the home of this defendant, we will show you that this defendant’s wife was ursina- Walter Allison, and that he was not the aggressor in that, if his home was invaded, but we will show you by letters in her own handwriting that she sought to have Walter Allison come there and sought his company, and we expect to show and prove to you gentlemen, by the evidence in this case, that in the conversation Mr. Pearson told you that wherein this defendant told Walter Allison he didn’t
Section 5231, Revised Statutes 1909, makes it niandatory upon the • part of the prosecuting attorney to first make a statement of the case to the jury. No authority is to be found authorizing the prosecuting attorney to make a statement in reply to the statement which the defendant is permitted to make.
In the case of State v. Kennedy, 177 Mo. 98, l. c. 166-117, a situation very analogous to ' the one now presented was discussed and the above statute construed. In that case it was held that the remarks made by the prosecuting attorney in a reply statement were prejudicial and that the same constituted reversible error.
We are of the opinion that the remarks of the prosecuting attorney in his reply statement in the case at bar were as prejudicial in their nature as were the remarks which were condemned in the Kennedy case, supra, and for the reason there given the same should be held to be reversible error.
We are not here saying that every reply statement of a prosecuting attorney without regard to its contents and without regard to whether the statement made contained or did not contain matters prejudicial to defendant’s rights, would constitute reversible error. The practice, however, should be condemned and not encouraged.
. The judgment is reversed and the cause is remanded.
as the opinion of Court in Banc.
Dissenting Opinion
(dissenting.) — I do not concur-in the conclusion reached in the majority opinion as to the alleged error in' permitting the prosecuting attorney to make a reply statement to the jury, preliminary to the trial.
It appears from the record that the prosecuting attorney stated to the court that he understood that he would not be permitted to make a reply statement. Upon associate counsel insisting that the State should be permitted to reply to extraneous matter, counsel for appellant stated his grounds of objection thereto. Subsequently, upon a renewal of the request by the prosecuting attorney, the court permitted the reply statement to be made, to which timely objections were interposed.
That portion of the statute (Sec. 5231, R. S. 1909) defining the procedure in regard to the statement of counsel in criminal cases preliminary to the introduction of testimony, is as follows: “The jury .being impaneled and sworn, the trial may proceed in the following order: first, the prosecuting attorney must state the case and offer the evidence in support of the prosecution; second, the defendant or his counsel may then state his defense and offer evidence in support thereof.”. ...
We are, therefore, of the opinion that no prejudicial error was committed in permitting the prosecuting attorney to make a reply statement, and that the judgment of the trial court should be affirmed. ,