57 Mo. 40 | Mo. | 1874
delivered the opinion of the court.
This was an indictment for murder in the first degree found in the Ralls County Circuit Court against the defendant aud six others for the killing of one Richard Menifee. The defendant was charged as principal in the first degree, and the others were charged as being present, aiding, abetting and assisting in the murder.
Upon the application of the defendants, a change of venue was gran ted-to the Circuit Court of Macon County and when the case was called for trial, a new judge having in the meantime been elected, who had previously been of counsel for defendants, a suggestion of that fact being made, the case was sent to Marion County, in another judicial Circuit, for trial.
When tire case was called, the attorneys prosecuting for the State announced themselves ready for trial, and the defendant and Samuel Scobee, who was. included in the indictment as a co-defendant, moved for a separate trial. Scobee asked that he might be first tried, and defendant demanded that Scobee should be first tried, alleging that he wanted the testimony of Scobee to be used on his trial. The Circuit attorney then moved that the defendant be first tried as he stood charged as principal in the first degree, and Scobee was only charged
It seems that, the difficulty between Menifee, the deceased, aud the defendants in the indictment, had its origin in the removal of a fence which separated the farms of the respective parties. The true line was not accurately fixed, but enough was known to render it certain that the fence was placed upon the land of the Underwoods, the defendants. Menifee had built the fence aud it belonged to him, and at the time the homicide was committed, he, with his brother, was in the act of removing it and putting it upon his own land. To this, defendants objected, as it would expose their crops. Defendant and Menifee had had some difficulty the evening before, and on the morning of the murder, Menifee brought a shot-gun with him when he went to his work in tearing down and rc-building the fence.
The main witness for the prosecution was the brother of the deceased, who was assisting him at the time. He says that while they were staking off the line, he looked out and saw two men, defendant and Scobee, and when they saw witness and the deceased,defendant started towards them and then stopped and made a motion to Scobee to go west. Scobee got on his horse and went in that direction, and defendant went south towards Stephen Underwood’s (his father’s) house. The work continued, and in a short time Stephen Underwood came and he said to the deceased, that the boys were not going to'let him move that fence. Deceased then said there was a legal way to stop them from moving the fence, and the old man said he would see as soon as he could get the boys and their arms. Stephen Underwood then went towards his house. Witness and deceased then went to another portion of the fence and commenced tearing it down, when, in about half an hour after Stephen Undewood left, he returned, and upon looking up, witness told his brother that he saw Stephen Underwood, William Underwood, Strother Underwood, Wesley Underwood, (defendant,) Frank Underwood, Asa
William Colliver was a witness for the State, and he testified that he lived within less than a quarter of a mile of Stephen Underwood, and he explained the situation of his farm and the Underwood and Menifee farms and stated in his testimony, that the Underwoods had joined on his fence without his permission. To this testimony, as to Underwoods joining witness’ fence without pennission, defendant’s counsel objected and the court sustained the objection, but the evidence was given in a narrative form and the remark was made before the witness could be stopped.
For the defense, Mrs. Amanda Seobee, the wife of Samuel Seobee and sister of defendant, stated that on the morning of the murder she started out to the field, and saw her husband
For the State the court gave twelve instructions, the sixth, seventh and eighth are the ones objected to in this court.
By the seventh declaration the jury are instructed that if they believe, from the evidence, that Richard Menifee was engaged in pulling down his fence, and that the defendant came to where said Menifee was at work, armed with a loaded gun for the purpose of compelling said Menifeo to desist from pulling down the fence by force, and approached said Menifee in such a manner as to give Menifee reasonable cause to apprehend a design on the part of defendant to kill him, or to do him some great bodily harm, unless he desisted from pulling down the fence, and there was reasonable cause to apprehend immediate danger of such design being accomplished, then the killing of said Menifee by defendant was not justifiable homicide.
The eighth instruction tells the jury that if they find from the evidence, that defendant and deceased had a difficulty which resulted in the death of the deceased, and that defendant commenced the difficulty, or brought it on by any willful and unlawful act of his committed at the time, or that he voluntarily and of his own free will and inclination entered into the difficulty, then there is no self defense in the cause and they should not acquit on that ground; and in such case it made no difference how imminent the peril might have been, in which the defendant was placed during the difficulty. There is a second instruction numbered six, which told the jury that if they should find, from the evidence, that Richard Menifee was engaged in pulling down his fence, and that Wesley Underwood came to where said Menifee was at work armed with a loaded gun, for the purpose of compelling said Menifee to desist from pulling down the fence by force, and approached said
There is no merit in the point raised, that the second change of venue was improperly granted, and that the Circuit Court of Marion County had no jurisdiction.
Aside from the fact that no exceptions were taken to the order, the-statute settles the question conclusively. The act in reference to criminal practice, (2 Wagn. Stat., p. 1097, § 15) provides that when any indictment or criminal prosecution shall be pending in any Circuit Court, the same shall be removed by the order of such court or the judge thereof, to the Circuit Court of some county in a different circuit,in either of the following cases: First, when the judge of the court in which such ease is pending, is near of kin to the defendant, by blood or marriage; or, second, when the offense charged is alleged to have been committed against the person or property of such judge, or some person near of kin to him ; or, third, when the judge is in any wise interested or prejudiced, or shall have been counsel in the cause. The 20th section'd' the same act- declares that whenever it shall be within the knowledge of a court or judge, that facts exist which would entitle a defendant to the removal of any criminal cause, on his application, such court or judge may make an order for such removal, without any application by the party for that purpose. And although the 27th section says, that in no case shall a second removal of any cause be allowed, yet this court has decided that a second change of venue may be granted when the judge has been counsel in the cause, notwithstanding the above provision. (State vs. Gates, 20 Mo., 400.) It is true that in this last case, the judge who awarded the change of venue had been the prosecuting attorney, but that makes no difference, as the 15th section applies justly and properly to every judge, whether he has been counsel for either the plaintiff or defendant.
It is next insisted, that Scobee should have been first tried, in order that the defendant might have had his testimony
In this case the defendants were severed in the trial. No facts were brought to the attention of the court, which made it imperatively necessary to comply with’ defendant’s or Sco-bee’s demand, and the court simply exercised a discretion which we will not revise. Of course a person indicted as an accessory, or principal in the second degree, may be put upon his trial before the principal in the first degree is tried or convicted, but that question has nothing to do with the ruling of the court here.
The court very properly excluded the testimony tending to show that defendant joined his fence with that of the deceased by permission. No such issue was raised in the case, and if the permission had been granted, it would not have justified or excused the offense. The. defendant had the right to remonstrate with the deceased against his act, whether the fence was joined by permission or not, but he had no right to resort to violence, in order to prevent its being torn down. Upon
The 8th instruction is based on the well settled doctrine that a party who seeks and brings on a difficulty cannot avail himself of the right of self-defense, in order to shield himself from the consequences of killing his adversary, however imminent the danger in which he may have found himself in the progress of the affray. (State vs. Starr, 38 Mo., 270; State vs. Linney, 52 Mo., 40.)
The 9th instruction is predicated upon the hypothesis, that there was a mutual and voluntary combat. If that were so, defendant could not rely on self-defense. For, where parties by mutual understanding, engage in a conflict, and death ensues to either, the slayer will be guilty of murder.
The second instruction given for the defendant, being the first adverted to in a prior part of this opinion, gave the accused the full benefit of all he could claim in regard to the right of self defense. The third fully justified him if he acted on appearances, grounded on reasonable cause of apprehended danger, and was surely sufficiently favorable. And the fourth declares, that if, whilst defendant -was remonstrating with Menifee against tearing down the fence, the latter picked up his gun, threatening to kill defendant, and presented the same at defendant in a hostile manner, then the defendant had the right,’ in the necessary defense of his person, to shoot and kill the deceased. When the instructions are all taken together, they lay down the law with such manifest fairness, and, withal are so just to the defendant, that it is impossible to find any real or tangible ground for complaint.
It is further contended that the defendant was not present in court during the whole progress of the trial, and therefore, the judgment is erroneous. Upon this point the record shows, that whilst the prisoner was in jail, the attention of the counsel in the cause was called by the court to the causes assigned for a new trial, and thereupon it was suggested by the prosecuting attorney, that the prisoner should be brought into court; the court then announced that it would not be neces-
One more objection only, remains to be noticed. It appears that before the case was given to the jury, and whilst they were still in the court room, two witnesses from Ralls county who were present on the part of the State, ascended to the cupola of the court house for the purpose of obtaining a view of the town. The stairs by which they went up, led from a door in one corner of the county clerk’s office. Whilst they were on the court house, the jury were conducted by the sheriff into the county clerk’s office, the room set apart for them, for consultation. The men, not knowing that the jury were there, descended in the same way that they had gone up. and then opened the door and passed immediately out of the room. The jury were in another corner of the room, and no
I think the court did not exercise its discretion unsoundly in refusing to sustain the motion in this respect. Upon an examination of the whole record, I have discovered no mate rial error.
Judgment affirmed;