State v. Terry

172 Mo. 213 | Mo. | 1903

BURGESS, J.

At the February term, 1902, of the ■circuit court of Pemiscot county, defendant was convicted of murder in the second degree, and his punishment fixed at ten years’ imprisonment in the penitentiary under an information theretofore filed in the office of the clerk of the circuit court of said county by the prosecuting attorney thereof, charging him with .having at said county on June 23, 1901, unlawfully, willfully, feloniously, deliberately, premeditatedly, on purpose and of his malice aforethought, with a pistol, .shot and killed one Charles Stewart.

After unsuccessful motions for new trial and in arrest, defendant appeals.

The salient facts are about as follows:

On June 23, 1901, and for sometime prior thereto, "the defendant was employed in the management of a pool room, which was adjacent to a saloon in Pascóla, Pemiscot county, Missouri. On that day there were numerous persons at the rooms in charge of defendant, among whom was Charles Stewart, the deceased. It seems that Stewart was crippled and deformed until he was unable to walk or move about in an upright position. Deceased, with ethers, had been drinking considerably during the day, none of whom, however, as the ■evidence shows, had become thoroughly intoxicated. At about eleven o ’clock, p. m., on the day of the homicide, •defendant and one Dr. Wells were engaged in playing a game of pool. Deceased and Dr. Wells were on intimate terms and deceased had been playing pranks on the Doctor by interfering with the pool balls. Just previous to the homicide he asked Dr. Wells who was running the house, and in reply defendant stated that he (Terry) was, and as deceased asked the question, he, with his left hand upon the pool table, raised himself up as though he was going to again move the pool balls, and as defendant made reply to the question asked by •deceased of Doctor Wells, he drew from his pocket a 38-caliber revolver- and taking deliberate aim shot Stewart, the ball passing entirely through his body and giving him a mortal wound, from which he died, after lingering in much, pain, on July 31, 1901. Immediately after shooting Stewart, defendant covered Dr. Wells with his weapon, and caused him to throw up his hands; then defendant left the room and was located sometime after-wards in Little Rock, Arkansas. He returned to Missouri without requisition papers; a trial was had and the jury failed to agree. Upon second trial he was found guilty of murder in the second degree and his punishment fixed at ten years ’ imprisonment in the penitentiary. He appeals.

Evidence was introduced by defendant to show that deceased had made threats against him and that he was a rough, violent man. Defendant set up self-defense and asserted that deceased was making an assault upon him at the time of the homicide and he shot him in self-defense.

The court instructed on murder in the first and second degrees, manslaughter in the second and fourth degrees, and self-defense.

The principal ground urged upon the attention of this court for a reversal of the judgment is with respect to the action of the court below in excluding evidence offered by defendant, but in the motion for a new trial, except as to matter hereafter considered, no complaint is made to the action of the court in this regard, nor its attention in any way called thereto, and it has -uniformly been held that errors of this character, in order to be reviewed on appeal or writ of error, must be raised by such a motion. [R. S. 1899, sec. 2689; Ray v. Thompson, 26 Mo. App. 431; State v. Johnson, 115 Mo. 480.] In State v. Gilmore, 110 Mo. 1, it is said: “Nothing is better settled than that errors of this character must be called to the attention, of the trial court in a motion for new trial, or they will not be noticed here. ’ ’ [State v. Noeninger, 108 Mo. 166; State v. Reed, 89 Mo. 168; State v. Mitchell, 98 Mo. 657; State v. Harvey, 105 Mo. 316; State v. Alred, 115 Mo. 473.]

Defendant offered to prove by witness Finley that deceased stated to him after he was shot, in effect, that defendant was not to blame for the difficulty, and that if he (deceased) had stayed sober and in his own place, there would have been no trouble, and that he did not. wish defendant arrested or bothered for what he had done. This testimony on objection by the State was excluded, and that ruling is Assigned for error. Deceased was no party to the prosecution, and the State was not. bound by anything he may have said with respect to the difficulty, either before or after it occurred. YThat he did say was mere hearsay. It is only when statements of this character are part of the res gestae, or are made in articulo mortis, that they are admissible in evidence (McMillen v. State, 13 Mo. 31; State v. Punshon, 124 Mo. 448), and there is no pretense that the statements, proposed to be proven were either part of the one, or made in anticipation of immediate dissolution.

Moreover, the statements were mere conclusions of ' th$ witness and inadmissible for that reason also.

The court did not instruct the jury that defendant was a competent witness in his own behalf, and this is assigned for error in the motion- for new trial. Defendant did, however, testify as a witness without objection, and no discrimination is made in the instructions between him and other witnesses; nor, is the fact that he was the defendant on trial in any manner adverted to,, and it does seem to us, in the absence of a request of the court by defendant to so instruct that he was competent, to testify as a witness in his own behalf, that the failure of the court to do so should not be sufficient ground for a reversal of the judgment.

The indictment is well enough. The verdict amply sustained by the evidence, which clearly established defendant’s guilt. The judgment is affirmed.

All concur.