68 Mo. 605 | Mo. | 1878
— One Jasper Hale, J. O. Swain, and his brothers, Thomas and Allen-Swain, the defendants, were jointly indicted for murder in the first degree, in the killing of Paul Marshall; the first count charging all the defendants as principals; the second, Hale as principal, the others as aiders and abettors. Hale was not arrested. On trial had, J. O. Swain was acquitted, and the defendants convicted of murder in the second degree, their punishment being assessed at seventeen years each in the penitentiary, and they appeal here, alleging for the reversal of the judgment against them, many errors as having occurred during the progress of, and subsequent to the trial. In view of the conclusion reached, that this cause must be retried, it is deemed unnecessary to advert to all the exceptions, as the cause, in most particulars, was very well tried, and no objection is perceived to those instructions relating to the different degrees of murder.
The evidence as to who did the killing was altogether circumstantial. It seems from the evidence that defendants, J. O. Swain, Benton Davis and Andrew Gurry, went to Newtonia from the house of defendants’ father, who lived some five miles south of that town, to see a game of base ball played between two companies. On their way thither they wei’e overtaken by Jasper Hale. On arriving at Newtonia, Thomas Swain and some others of those mentioned, participated in the game. About four o’clock in the afternoon the defendants, J. O. Swain, Hale, Gurry, Davis and Thos. E. Pearson, started on horse-back from
The testimony of Lisles (who lives on the Newtonia road on Shannon creek, about a mile north of Heilig’shouse, and close by the spot where that road continues south, and the road to Harmony church forks to the right, and that to Independence school house to the left), shows-that about dusk on the evening of the homicide, Marshall passed his house riding south at a pretty good gait, and soon after that, other persons not recognized, came riding along going also at a similar pace and in the same direction and making a noise; that after this party of unknown persons had passed his house and reached the forks of the-road before-mentioned, some one cried out, “That is not
As to the difficulty which immediately preceded the homicide of Marshall, the testimony tended to show that on the latter coming out to where the party of young men were he asked some question, received rather a saucy answer from Hale; that some rough words passed between them; that Hale was next seen down from his horse; that Marshall immediately collared or throttled Hale, saying to him, “ I’ll settle with you,” and led him off on the road towards Newtonia; that defendants were seen down off their horses, and as well as one or two others of the party, were also trying to preserve peace by calling to Hale and Marshall for that purpose; that this intercession accomplished nothing; that no one, so far as seen, followed Hale and Marshal]; that after they had gone some thirty yards on the road towards Newtonia, Davis and Curry started on eastward from Heilig’s towards their homes, and had gone about 100 yards when they heard firing ; that Pearson, who lived but a short distance north-easterly from defendants, and on or near the Newtonia road leading towards the home of defendants’ father, had, after the altercation between Marshall and Piale begun, gone on south on that road about thirty yards, when he heard a pistol fire, and saw its flash ; that when he had gone about 200 yards from the scene of .the altercation he was over-taken by the
The testimony of the three Swain brothers was not inconsistent with that of the other witnesses, but in many particulars is corroborated thereby. They testify to defendants having vainly endeavored to stop the quarrel ; .that Hale, on being collared by Marshall, had drawn his pistol, and had it drawn by his side; that Marshall had his right hand back on his hip; th at no weapon was seen in Marshall’s hands; that Marshall and Hale were some seventy-five yards down the road when defendants got on their horses and the firing commenced ; that they rode on, overtook Pearson, as he had stated, left him at the corner of Heilig’s field, went on towards their home, and when letting down the fence at Hale’s father’s house, were overtaken by Hale, who said, “He had killed Marshall, the d — d son-of a b — h;” that they rode on home, went to bed, where they remained, until under the advice of a neighbor, who had learned that Marshall’s brothers were _ coming to kill them, they went to Col. Freeman’s and remained till next day, when they returned home. It was also in evidence by other witnesses, that Hale had marks on his throat, as if he had been throttled by some one; that he made a similar declaration to the one attributed to him about Marshall, that he would have to leave the country or be hung, and that he had left the couutry. The above is believed to be a correct resume of a voluminous mass of testimony, in the investigation af which, we have been not greatly aided either by the abstract furnished or by the imperfect index to the record.
In the case at bar, had the shot spoken of by Lisle been fired at the time Marshall and Hale were going up the road in front of Heilig’s house, and immediately afterward such question and reply were asked and made as took place at Lisle’s, the obvious contemporaneousness and connection between the act done and the words spoken would have been too apparent to have doubted for a moment that such act and words formed part of the res gestae, and would, therefore, have been admissible in evidence. Here, however, at least three-quarters of an hour elapsed between the time the party passed by Lisle’s and that when the shots were fired which resulted in Marshall’s death. ¥e are, therefore, unable to see any connection in point of time between Marshall’s death and the acts and declarations occurring prior to the time the party rode up in front of Heilig’s house; hence, we hold evidence of such acts and declarations inadmissible, if offered as part and parcel of the homicidal transaction on the ground of relating to the main fact, and of being contemporary therewith. In other words, the principal fact was the killing of Marshall, and we do not conceive that the acts aud declarations occurring at Lisle’s, or prior to that time, so illustrate and characterize the main fact, as to constitute the whole matter one transaction, aud render the admission of the prior occurrences necessary in order to exhibit that fact in its
II. But, though such evidence of other acts and declarations was not receivable as part of the res gestae, yet it might be received against those making such declarations and doing such acts, and against those, also, who were associated with them in a common design to effect the death of Marshall. Such evidence, however, would not be admissible except on that ground. Usually, a prima facie ease as to such conspiracy must be first made out, before the declarations or acts of the co-conspirators are admissible against one another. But the practice also prevails both in England and this country, to admit general evidence of a consph’acy to effect an unlawful act, as preliminary to the proof that the defendants were guilty participators therein. 3 Greenl. Ev., § 92. Such evidence will, in most instances from the very nature of the case, be circumstantial® and, therefore, evidence of an infinite variety of circumstances, trivial and unimportant in and of themselves, when singly considered, may be received to establish with more or less directness, the'formation and object of the guilty purpose. But if such general evidence of conspiracy be first introduced, without taking the usual preliminary step of showing the defendants guilty participants therein, and it should manifestly appear insufficient to affect the defendants, it would be the plain duty of the court to stop the cause in limine. 3 Greenl. Ev., Ib.
It is far from clear to my mind.that any combination or conspiracy was formed between the defendants and Hale to kill Marshall; no old feud grudge or quarrel appears to have existed between the parties; Marshall rode with them in a perfectly friendly manner for two and a half miles, within an hour before he was shot, and was evidently without the slightest apprehension, as shown by his expression to Mary Heilig when going out to meet the party of young men in front of Heilig’s house. On the contrary, his sad death seems to have been the result of a sudden quarrel
Of course, if there was a conspiracy between Hale and the defendants to kill Marshall, and it was effected by them, this would, being deliberately and premeditatedly done, be murder in the first degree. But inasmuch as defendants have, by the verdict of the jury, been acquitted of that crime, and as on the return of this cause to the circuit court, they can be tried for no higher grade of murder than that of which they stand convicted, it of necessity follows that any evidence of a conspiracy on the part of defendants to kill Marshall, cannot then be received ; for this would be to ignore the salient feature of murder in the second degree, that it possesses no element of premeditation or deliberation ; that it stands on the same footing in this regal’d as manslaughter at common law ; both offenses being considered in law sudden and unpremeditated. 3 Greenl. Ev., § 43. But notwithstanding no conspiracy to effect the death of Marshall can be shown against these defendants on a second trial of this cause, yet evidence tending to show a conspiracy to effect his great bodily harm may well be admitted against them ; and if, in the endeavor to effect such unlawful design, they accomplished his death, they would be guilty of murder in the first degree. This point was thus ruled in the State v. Jennings, 18 Mo. 435. Inasmuch, however, as they stand forever acquit of that higher grade of offense, they cannot be convicted of more than murder in the second degree, even if
III. "We think the instruction asked by the defendants in reference to good character, or a similar instruction, should have been given ; they had abundantly established a good character as peaceable, law-abiding citizens anterior to the commission of the offense with which they are charged; and evidence of facts and evidence of character rest on the same basis; and no legitimate distinction can he taken between them. The object of the introduction of evidence respecting good character, is the improbability that a person of good character would have committed the offense alleged against him, and to lay such evidence before them with the purpose of inducing belief that either mistake or misrepresentation has occurred on the part of the prosecution. 3 Greenl. Ev., § 25, and cases cited; State v. Alexander, 66 Mo. 148.
IV. The case of the State v. Miller, 67 Mo. 604, is conclusive of the point as to the admissibility of Archer’s testimony in contradiction of the witness Curry, the statement of whose testimony was received under the provisions of the act of 1875. But, though Archer was properly permitted under that act to swear that Curry had made a statement contradictory of the one accepted as the one he would make if he had been present at the trial, yet the jury ought to have been far more explicitly told than they were that such testimony could only be received for the sole purpose of impeaching Curry’s statement, and could, under no circumstances, be received as evidence against the accused. The statutory method of impeaching the testimony of an absent witness is sometimes very harsh in its practical operation, and should in consequence, be very sedulously guarded by the trial courts. The statement made in behalf of the absent witness, Curry, was similar to the testimony of the other witnesses, Davis and Pearson. None of the witnesses had testified that Th^ Swain had
The jury should have been very pointedly told that the testimony of Archer, so far as being evidence against the defendants, was to be entirely excluded from their consideration ; that its only purpose was to impeach the statement of Curry, and could have no other effect whatsoever. The instruction asked by defendants on this point was altogether unobjectionable, and should have been given. It is byno means improbable that Archer’s testimony had no little weight in turning the scale against the accused; and this illustrates, in a very forcible manner, the extreme danger of overthrowing, by legislative innovations, well established rules of evidence.
V. Relative to the testimony of defendants themselves, we do not think that the instruction asked for them on that point should have been given. But we do think that the jury should have been told that a defendant, testifying in his own behalf in a criminal case, has as much credibility attached to his testimony as if testifying in a similar manner in a civil one. 2 Wag. Stat., § 1, p. 1372; Laws 1877, p. 356, § 1.
VI. We see no good reason why the usual formula as to a reasonable doubt should have been changed by receiving the addition of the word “ captious.” It is better to adhere to well settled instructions than to attempt new departures and experiments in criminal procedure. The judgment is reversed and the cause remanded.
Reversed.