State v. Thomas

78 Mo. 327 | Mo. | 1883

Sherwood, J.

The defendant was indicted for murder in the first degree, and on trial was convicted of murder in the second-degree, and his punishment assessed at ten years in the penitentiary.

The case as a whole was well tried, and the instructions prepared by the court, of its own motion, are exceptionally good. They embraced within their scope the various grades of murder and of manslaughter in the third azid fouz’th degrees. The evidence was of such a nature as to warrant instructions for these various degrees of homicide. The instructions given by .the court, of its own motion, fully embodied those asked by the defendant, and there was, therefore, no error in refusing them.

, DENCE. We have carefully read the evidence in this case, and there would seem to be much ground for the opinion that a different verdict could-well have been returned by the jury; but that was a matter for them, and so long as proper instructions are given and there is evidence which supports the verdict, it is beyond our province to interfere. State v. Musick, 71 Mo. 401.

2. evidence of character: practice. Rut for the very reason that the verdict of the jury is to be final in the circumstances we have mentioned, care should be taken that nothing should occur , ° . during tlie trial to influence the minds or the jurors and lead them to a conclusion different from that to which they would probably have come had improper evidence not been admitted. This is especially true where, as here, the testimony is very conflicting, and where it would seem to require but a slight circumstance to turn the scale either way. We allude now to the court permitting the prosecuting attorney to introduce evidence to support the character of Ed. Seitz, whose character had not been attacked. This was clearly incompetent evidence. State v. Cooper, 71 Mo. 436; 1 Greenleaf Ev., § 469; 1 Wharton Ev., § 569. Ed. Seitz was the only witness who swore that when the combatants reached the bottom of the hill, Joos was on the bottom and “ Ed. on top.” The evident purpose of thus bolstering the testimony of Seitz was to strengthen his testimony before the jury, and by doing this to impress upon them the idea that the theory of self-defense had no support in the facts of the case. It is impossible to calculate the injury which the introduction of this evidence— thus unwarrantably and over the objection of the defendant introduced — did to him. We certainly will not assume that no injury resulted to the defendant in consequence of its introduction, sanctioned as it was by the express approval of the court. “A judgment, even in a criminal case, will not be reversed for immaterial errors. In such -cases, however, courts will rarely presume that the particular-evidence which has been Wrongfully admitted could have had no influence on the minds of the jury.” McKnight v. State, 6 Tex. App. Rep. 158, and cases cited.- “ If the minds of the jury, at that juncture, were still tremulous with indecision between the innocence and the guilt of the prisoner, the reception of such testimony was sufficient to turn the scale against him. And the courts will' hesitate long before they will say that the violation of a plain rule of evidence, as in tlie present instance, did not operate to tlie prejudice of tlie accused.” State v. Jaeger, 66 Mo. 173.

We make no comment on the unseemly exhibition of rivalry exhibited during tlie trial of the cause by physicians who were summoned as witnesses, in the hope that it may not again occur. “ When doctors disagree ” they should select some other arena — some other time and place than a court-house where a human being is being tried for his life or liberty — for such exhibitions as were witnessed during the trial of this case. We will not be understood as denying to attorneys tlie assistance which physicians, skilled in their profession, may give in the investigation of wounds in cases of homicide; but certainly such assistance can be secured without bringing tlie witnesses forward as contestants rather than witnesses.

Por the reason aforesaid, judgment reversed and cause remanded.

All concur, except Norton, J., absent.