159 Mo. 669 | Mo. | 1901
On the ninth day of January,-1900, the defendant shot and killed with a shotgun at Jackson county one Wood Mitchell, for which he was thereafter indicted by
The facts briefly stated are, that at the time of the homicide, defendant lived on a farm in said county, which belonged to one Clinton D. French, and had in his custody a lot of hogs and other personal property belonging to him. The farm had recently theretofore been occupied by one Moore, who had executed a chattel mortgage upon the hogs to Mrs. W. A. Moore, which was transferred to the J. H. North Furniture & Oarpet Company, a business firm at Kansas City. The deceased Mitchell was an attorney at law. On the morning of the ninth of January, 1900, Mitchell went to the farm upon which defendant then resided to make arrangements to recover the hogs, and for that purpose took with him a deputy constable, who had a writ of replevin for the hogs which had been sued out by the J. H. North Furniture & Carpet Company before a justice of the peace in Kansas City.
' On the morning of the difficulty in a conversation deceased had with one John Fred, Fred said to him, “If you go down to get those hogs and meet that man Westlake as a gentleman, he will meet you half way, but if you don’t you are liable to have trouble.” Deceased replied, “I will show that big stiff a trick that he has never learned,” etc. This was communicated to defendant before the shooting. As deceased and the deputy constable Sherman were walking across a field towards the house of defendant, he observed them, and immediately went to his house, got his shotgun, stationed himself in front of a wire which was stretched across the passage way leading into his yard, and waited until deceased and Sherman came walking up, and had gotten within about twelve
Defendant, in his own behalf, testified as follows: “I went to Grand View from my place late in the forenoon, and shortly before the shooting; it was some little time before noon. I was there with Mr. Irwin. That was on the ninth day of January, 1900. I went after my mail and called up Mr. French who owned the place on which I lived and talked with him over the telephone; I was not there but a few minutes. I saw two men coming from the north and turn across the field east towards my place; they were coming from towards the Phelan house; I started with Mr. Irwin towards home; I wanted to get down there and see who they were; I wanted to see if they were going down there to the place and what they wanted, whether they wanted to take the property, and if they were officers. I wanted to see that they didn’t take anything away unless they had a writ of replevin. I didn’t know who they were, but I thought one of them was Yic Moore; he is the son of W. A. Moore, who was a former tenant on the farm before I took charge of it. I went straight home, walked pretty fast and went to the house and got my gun; I came out and stood in the yard close to the fence; I' supposed six or eight feet from the wire; I think I had my gun in my left hand when I first spoke to the deceased; he was about ninety or a hundred feet away from me. I recognized Mitchell when I first spoke, the other man I had never seen before; the first thing I said to him was, ‘you can’t come
The defense interposed was that of self-defense.
The point is made that the court committed error in refusing to allow defendant’s counsel to make an opening statement of the case to the jury.
But this contention is not, we think, borne out by the record, which shows that the court did not refuse to permit defendant to make a statement of the facts relied upon by him as tending to show that Mitchell at the time of the shooting was approaching defendant in a hostile manner, and that he shot him in self-defense, but only to show such facts as were in the opinion of the court illegal, improper, irrelevant and incompetent, and which evidence to support would not have been admissible. The court also announced to defendant that he could make any statement of the case that was relevant, than which nothing more could have been desired or expected.
During the cross-examination of defendant as a witness the following occurred.
“Q. Weren’t you convicted for shooting a man? A. No, sir; I wasn’t, I never shot anybody in my life.
“Q. Weren’t you convicted of shooting at a man?
“By Mr. Woodson: We object to it.
“By the Court: Objection overruled.
“By Mr. Woodson: We except.
“By Mr. Porterfield: The defendant objects to the question as incompetent — the record is the best evidence — irrelevant and immaterial; if the defendant doesn’t introduce evidence as to the good character of the defendant, the State can’t produce evidence to the contrary, and because the defendant can not be cross-examined as to matters not touched upon in his direct examination.
“By the Court: Overruled by the court for the reason that the defendant, when he becomes a witness and places himself on the witness stand, he places himself in the same position as any other witness and is subject to the same cross-examination exactly.
“A, I was convicted of shooting; but not shooting at him; I didn’t shoot at him; I got out of it all right without any further trouble.
“Q. You were convicted of shooting? A. Yes, sir.
“Q. Shooting at a man ? A. I didn’t shoot at him, he was 'an old man.
“Q. You were convicted of shooting at him with the intent to kill ? A. He was an old man who annoyed me and my folks a great deal.
“Q. You were convicted of shooting at the man with intent to kill? A. That was the verdict of the jury when they found out the circumstances; the prosecutor wrote to the Governor that a $500 fine would have been the limit at the start, after they learned the circumstances.”
It is well settled that in order that a party to a suit may take advantage of the adverse ruling of the court in the admission of evidence against him he must not only make timely objection to the admission of such evidence, stating the grounds therefor, if it be admissible for any purpose, but he must except to the ruling' of the court at the time and save his exception. Now, the only objection made to which an exception was saved to the ruling of the court, was a general one, without a stating upon what ground the objection was based, whether because the question was improper on the cross-examination of defendant for' the reason that he had not in his examination in chief been examined in regard to such matter, or upon some other ground. We can not presume that it was one or the other, for in either case defendant could have waived the objection if he had been so inclined, and in the absence of more specific objection, he must be held to have done so.
Moreover, defendant’s counsel concedes that this error, if one, could have been remedied by instruction restricting the testimony to the credibility of defendant as a witness. But no such instruction was asked by defendant, and while it is true that section 2627, Revised Statutes 1899, makes it the duty of the court to instruct the jury on all questions of law, etc., this does not embrace the credibility of defendant as a witness. But in any event as defendant did not at the time the instructions were given, except because the court had failed
Defendant claims that the court erred in refusing the third instruction asked by him to the effect that, if they believed from the evidence that any threat had been made against the defendant by the deceased, which had been communicated to defendant on the day of the shooting and prior thereto, such threat should be taken into consideration by them in determining the reasonableness of the apprehensions by defendant that the deceased was about to do the defendant some great bodily harm or take his life.
We are unable to conceive, under the facts disclosed by the record, how the defendant could have been prejudiced by the refusal of this instruction. The mere fact that Mitchell may have threatened violence against defendant did not justify the defendant in assaulting and killing him, but in order to have done so there must have been an actual attempt at assault, or defendant must have had good reason to believe that deceased was then about to assault him or to do him some great bodily harm and the evidence failed to show that deceased was making any attempt to assault defendant or to do him great bodily harm at .the time he fired the fatal shot.
While evidence of threats is usually admissible in cases of assault as tending to show who was the aggressor, we do not wish to be understood -as holding that it is the duty of the court to instruct to that effect.
The facts disclosed by the record did not justify an instruction for manslaughter in any degree; for if the evidence was to be believed defendant was guilty of murder in the first or second degree.
Finding no reversible error in the record we affirm the judgment.