85 Mo. 134 | Mo. | 1884
The defendant, a negro, was indicted, for killing a girl of his own race, by shooting her to death with a pistol. The crime of which defendant stands convicted, if testimony to that effect from all the witnesses except defendant, be taken as true, and the nature, number and direction of the gun-shot wounds be considered, was an atrociously brutal murder, without palliation or excuse. The testimony of the defendant, in some particulars, tended to show circumstances extenuating the offence ; but when his whole testimony is examined, no possible doubt can arise as to the existence of his guilt in the degree affirmed by the verdict of the jury. And this fact becomes very conspicuous when his testimony as to the circumstances attending the killing-is contrasted with the physical facts of the direction of one of the gun-shot wounds, the blood stains on the bed where the deceased was lying when the defendant went into the room, and the testimony of Dr. Russell as to the recumbent position deceased was in when receiving that wound. Numerous errors have been assigned for the reversal of the judgment.
I. There was no error in holding the plea in abatement, filed by defendant, insufficient. Taking that plea, it having been demurred to, as true, the facts thus admitted constitute no ground for a plea in abatement. Section 2787, Revised Statutes, 1879, is directly applicable to this case. That section expressly provides that,
II. Regarding the application for a change of venue, it was based upon the ground of the prejudice of the inhabitants of the county against the defendant. On this point witnesses were heard pro and con, and the decision of the trial court was final thereon, unless some abuse of judicial discretion were shown, which has not been done. State v. Whitton, 68 Mo. 91, and cases cited; Revised Statutes, 1879, section 1859.
III. The application for a continuance was properly denied, and this for several reasons: The indictment was found on the fourteenth day of October, 1884; the defendant was arraigned on the sixteenth day of October, when he appeared in person and by counsel; on the twentieth day of October additional counsel were appointed for bim ; on the twenty-third day of October, the day the trial begtm, the application for a continuance was made, wherein it is alleged that defendant was not able to procure counsel for his defence .until the twentieth day of October, when the same were appointed for him by the court; that on the eighteenth day of October an attorney of the court, at defendant’s solicitation, had a subpoena issued for his witnesses, which subpoena as to the absent witness on the twenty-second day of October was returned nan est. Some of these statements are contradicted, as already seen by the record, and, besides, show no diligence. The defendant ha'd counsel on the sixteenth day of October, when he was arraigned and a jury ordered for the trial of the cause, for this is shown by the record, and yet no subpoena was issued for two days thereafter, as appears by defendant’s sworn statement.
IY. Complaint is made that error occurred in disallowing defendant’s challenges to certain jurors. The opinions which those jurors had formed or expressed were based on rumors and newspaper reports, and, therefore, this case is unlike that of The State v. Culler, 82 Mo. 623, where the jurors held incompetent had either read the evidence as taken down by the coroner or else had.read it when published in full in the newspapers. George Y. Yandiver, one of the jurors, on his voir dire, after stating that his opinion was formed, as aforesaid, said he “ would naturally suppose defendant guilty.” Much stress is laid by defendant’s counsel on this response of Yandiver. By it he evidently only intended to convey the idea that after having read about the homicide in the newspapers arid heard people talk about it, that such a supposition would very naturally enter his mind, and it would certainly be singular if it would not. Suppositions, conjectures, inferences, and surmises are constantly being mirrored in the human mind by reason of statements or impressions made by others, and it is just as natural that this should be the case as it is that the retina of the human eye should reflect the images of surrounding objects. Instead, therefore, of this response
Y. Respecting the instructions, they are, for the most part, correct, and sustained by the evidence. But there is a serious lack in the instructions, in that, while those given on behalf of the defendant, and evidently based on his testimony, recognize and allow a finding for a grade of homicide less than murder in the first degree, yet no definition of any lower grade of crime is given. This is sufficient ground for reversal, and as the case goes back it may not be amiss to remark that the eighth instruction is probably calculated to mislead the jury. While mere threats are not sufficient to palliate a homicide, yet when they occur as a part of the res gestae and are uttered while making an attempt on the life of the person threateneds, they may be worthy of consideration, as tending, in connection with such attempts, to lower the grade of homicide when perpetrated by the person threatened.
YI. Relative to the point that no negroes were returned on the panel of forty from which the jury was selected to try this cause, it is enough to say that there is nothing in the record to show whether the .panel was white or black, or whether the population of Lafayette county consists in part of negroes, since there is no proof of these matters in the record, and the recital of them in the motion for a new trial constitutes no evidence of them, and judicial notice of such things cannot be entertained by this court.