99 Mo. 666 | Mo. | 1889
The defendant being convicted of murder in the first degree, and sentenced accordingly, appeals to this court, and assigns various errors as grounds for reversal of the judgment.
The indictment charges that the defendant murdered Stephen Ferguson on the tenth day of December, 1887, by stabbing and cutting him with a knife; and there was evidence to establish the charge consisting of direct testimony as well as admissions made by the defendant, both orally and in writing. Ferguson was found the morning of the eleventh of December dead, with his throat cut; his body was lying at a point about sixty-live yards west of where a north and south line, if drawn between defendant’s house and Birne’s saloon, would strike the railroad, and the saloon was about forty yards north of the railroad. The distance between defendant’s house and the saloon was about one hundred and sixty yards. The killing is said to have occurred at about eleven o’clock on the night of the tenth of December. The most friendly relations were shown to have existed between the defendant and the deceased. The latter was left in the saloon when defendant, Henry Hoppe and Peter Fuchs with him, obtained a case of beer and started to go to defendant’s house. The defendant was absent when going after the beer only about fifteen minutes, and when he returned home his face was wounded, cut in three places and covered with blood. His wife, mother-in-law and his brother, washed the blood off his wounds and put him to bed.
There is no dispute as to the fact of the defendant returning home from the saloon with a bleeding face,
The admissions of the defendant touching the killing were as follows: When charged by the marshal, Wilson, who had him under arrest, with having killed Ferguson, he said he “ was not the only one in it.” To Jackson, the deputy sheriff, when shown the corpse, and asked if he knew who it was, he said : “ My God, what did I do that for?” Speaking further on the subject, he recognized as his the knife shown him by Jackson; said he had it last night and burst out crying, and on Wilson returning, defendant made a further statement in reference to the occurrence : “He said he was going from the saloon with a keg of beer or case of beer, whatever it was, on his shoulder and he met a man, he did not know who it was, and had some trouble with him, and the man struck him with a lantern; about that time Ferguson came along and asked him what did he strike that man for, that man had done nothing to him, and he said Steve struck at him with his open hand, ‘and I stabbed him one.’ ”
To the prosecuting attorney, Wilson, he made these statements : “ I first asked him Avhat made the cuts, I think it was on his face, and he said a man by name of Hare had struck him with a lantern. I then asked him Avhy ■ he cut Steve Ferguson, and he said he did it because Steve Ferguson struck him, and that he called him a son of a bitch or damned son of a b — h, and I asked him if he struck him with his fist or open' hand, and he said he did not know, but he did not strike him very hard, he did not knock him down, and he said that Ferguson after he, Ferguson, had struck him (Young) Ferguson turned around and started away from him
And the following statement was also made by defendant at the inquest in the presence of the coroner, and reduced to writing: “We, Peter Fouks and Henry Hoppe and.myself, came out of the saloon. We meta man with a lantern, and asked him to show us the way across the railroad down to my house. The man said he would not do it, you son óf a b — h. I asked him who you call a son of a b — h; he drew back and struck me with the lantern, in the face. Then he ran away, and I ran after him. Then Stephen Ferguson, the deceased, came and struck me. Then I opened the knife and cut at him. I had the knife in my right hand. The man was standing in front of me. After I struck I fell down, too. I must have cut him, or there would not have been blood on the knife. I knew that I was striking Steve Ferguson at the time.
his
“Chbis X Young.
mark
“In witness of us,
“J. M. Livengood,
“W. R. Jackson.”
Other evidence of admissions of the defendant consisted of an application for a continuance, made by him at a former term, in which he denied that he had any trouble with Ferguson on the night of the homicide;
In his testimony upon the trial, the defendant also-denied that he had any difficulty with Ferguson on the night in question, or that lie- had any knife’ then; but stated that he- had a difficulty with two strangers, one-of whom struck him in the face with a lantern, and the-other had knocked him. down, or had struck him- twice- and he fell down. He also stated that he and Ferguson were on the most friendly terms, and that he left the-latter at the saloon when he started home.
I. The affidavit for- a continuance, made by the defendant, at a former term of the court, was properly admitted in evidence- on the- authority of State v. Hayes, 78 Mo. 307.
II. There- was error in admitting testimony as to. what Craft said to Wilson, the marshal, to-wit: “You have got your right man; you don’t have to go any farther to get him.” There are two reasons why the ruling was erroneous:
.First. Because- the defendant was under arrest, and, therefore, in no. position to make any denial as to what Craft said in his presence. His silence under Craft’s- remark will not warrant any inference against, him. Wharton’s; Crim. Ey., sec. 680; Com. v. Walker, 13 Allen, 570; U. S. v. Brown, 4 Cranch (C. C.) 508; Com. v. Kenney, 12 Met. 235; Rex v. Appleby, 3 Stark. 33; Bob v. State, 32 Ala. 560.
Second. Because- the remark was made by a mere stranger in his presence, and not to him. Com. v. Kenney, supra; Child v. Grace, 2 C. & P. 193; Moore v. Smith, 14 Serg. & R. 388; 1 Glf.’s Ev. [14 Ed.] sec. 199; Melen v. Andrews, 1 M. & M. 336; Com. v. McDermott, 123 Mass. 440. Thedefendant had the right, therefore, to treat the- remark of Craft as mere impertinence, and best answered by silence.. Ibid. See also State v. Walker, 78 Mo. 380; State v. Glahn, 97 Mo. 694; State v.
III. The instructions, given by -the court at the instance of the state, limited the jury to finding the defendant guilty of murder in the first degree, if found guilty at all. On the part of the defendant, an instruction was given as to self-defense, as to which it is unnecessary to say anything, as the defendant is not complaining of that, nor could he do so after having asked it. But he complains, and justly complains, of the failure of the court to instinct the jury as to the lower grades of homicide. The admissions made by the defendant to Wilson, the' prosecuting attorney, and that made to the coroner, certainly furnished ample basis on which to give instructions in regard to murder in the second degree and manslaughter in the fourth degree.
No one can read this record without being fully impressed with the idea that the defendant, and possibly some of his companions, were considerably inebriated when returning to' his house from the saloon. And, although this would not furnish him any extenuation for the crime, it certainly would furnish some ground of excuse for making a mistake as to who struck him, and as to whom he struck. But, be that as it may, the state, having introduced in evidence the admissions of the defendant, admissions which authorized instructions for lower grades of homicide; instructions more favorable, perhaps, to the defendant, in view of all the facts in the case, than his own testimony on the witness stand warranted, cannot now insist that such instructions would have been erroneous. And, if the instructions asked by the defendant as to such lower grades of homicide were erroneous, it was the duty of the court to have given, in their stead, those which were correct expositions of the law of the case. State v. Lowe, 93 Mo. 547; State v. Matthews, 20 Mo. 55; State v. Jones, 61 Mo. 232.
“The court instructs the jury that defendant is a competent witness in this case, yet, in considering what' weight and credibility you will give to his testimony in making up your verdict, you should take into consideration, as affecting his credibility, that he is the accused party on trial.”
“You are further instructed that .Kate Young, the wife of t^e defendant, is a competent witness in this case for the defendant, yet, in considering what weight and credibility you will give to her testimony in making up your verdict, you should take into consideration, as affecting her credibility, that she is the wife of the accused party.” .
The ground of the complaint is that those instructions invade the province of the jury in regard to what weight should be given to certain testimony. Our statute, section .4220, Revised Statutes, 1889, which has remained unchanged on our statute book for a great number of years, provides that:— “The court shall not, on the trial of the issue in any criminal case, sum up or comment upon the evidence or charge the jury as to matter of fact.”
There have been numerous decisions on this statute, and many reversals of judgments have occurred because of the failure of the lower courts to heed the statutory prohibitions. Touching on this point, and speaking o.f the instructions in a certain case, Scott, J., said: “ Some of them are mere comments on the evidence, or charges to the jury as to matters of fact, which the law forbids being given without the consent of both parties. R. C. 882, sec. 28. What is striking in the instructionsj is the attempt of the court to prescribe rules to the jury, by which they were to ascertain the credit due to a witness. When a witness testifies to jurors, they are
In State v. Cushing, 29 Mo. 215, it was said: “The first is an instruction directing the jury to disregard the entire evidence of a witness, if they believe him false in any particular. Such instructions invade the province of the jury, whose business it is to determine the credibility of witnesses, and who are not to be hampered in exercising their judgment by any inflexible rules on the subject.”
In the State v. Schoenwald., 31 Mo. 147, Scott, J., speaking for the court, said: “There was no error in the refusal of the court to charge the jury that if the testimony of any witness bore upon its face the mark of gross improbability it is not necessary that such witness should be impeached by other witnesses, but the jury may disregard the testimony of any such witness. This instruction in effect was given by the court in the direction made as to the rule by which the jury would be governed in ascertaining the weight to be given to the evidence. Although the instruction stands as an abstraction, yet when it is applied to the evidence of any witness, it is nothing more than an attempt to control the jury in determining the credibility of the witnesses.”
In the same case, the learned judge further remarked: “In my opinion, the court has no authority to prescribe any rules to the jury by which they are to determine the credibility of the witnesses. If the court can by authoritative rules direct the jury in weighing the credibility of witnesses, then the court and not the jury determines the weight to be given to the evidence, a matter exclusively within the province of the jury. The jury, from their experience and knowledge of the common concerns of life, are presumed to be the best triers of facts. They take with them into the jury box their experience in life, which has enabled them to form
In State v. Hundley, 46 Mo. 414, similar observations are made as to the impropriety of instructions whose purport was to inform the jury as to. the credibility to be given to the testimony of a certain class of witnesses. In State v. Smith, 53 Mo. 267, Vories, J., in delivering the opinion of the court, observed : “The third instruction, given by the court on the part of the prosecution, tells the jury, ‘that it is not sufficient to warrant an acquittal, for the defendant simply to show that at times he acted and talked strangely and singu-' larly, but that the jury must believe from the testimony that he was insane at the very time he committed the offense, and that he was so insane that he could not distinguish right from wrong. This instruction was clearly wrong; it is not the province of the court to select certain facts shown by the evidence, and tell the jury how much and what weight they shall give to such facts, or whether they shall give such evidence any weight at all. The court passes upon the legality or admissibility of the evidence, but, after the evidence is legally admitted, it is the exclusive province of the jury to pass upon the weight of the evidence given, and give each part of the evidence such weight as in their judgment it is entitled to receive, without any interference or direction of the court whatever. Their minds ought to act freely on the facts of the case without any other control than that of their own unbiased judgment. This instruction is a comment on the evidence, which is expressly forbidden by our statute. (W. S. 1106, sec. 30.) The statute provides, that the court shall not ‘sum up or comment on the evidence.’ If the court can, under this statute, select certain portions of the evidence and tell the jury how much weight to give, or whether they
It will thus be seen that the doctrine enunciated in the early opinions of this court, coming down, indeed, to a comparatively recent period, forbids, as does the statute already quoted, any interference by the courts with the province of the triers of the facts. The only province of the court in instructing the jury is as to the law of the case, if certain facts are found by them to exist, i. <?., that if the facts are so and so, that then the law is so and so, upon those facts.
But reference is made to section 4218, where it is said that, “No person shall be incompetent to testify as a witness in any criminal cause or prosecution by reason of being the person on trial or examination, or by reason of being the husband or wife of the accused, but any such facts may be shown for the purpose of ajfeeting the credibility of such witness.” And this provision, it is argued, gives authority to the court to comment upon and to instruct upon the credibility of such witness. This, I take it, is a total misconception of the statute in question, and one which holds for naught the rigid provisions of section 4220, aforesaid. There are many instances where the relations of a witness towards one of the parties litigant may b,e shown in order to affect his credibility, yet this fact would not alter the statutory rule. Take, for instance, the case of a hostile witness, or of one closely related to the adverse party, no one would doubt that such bias or relationship might be shown in order that the jury might form the proper estimate of his testimony; yet no one would venture to contend that this fact would authorize an
V. Was the written statement of the defendant made by him before the coroner admissible in evidence without laying the usual foundation % In the case of any ordinary witness, one not a party to the record, the rule undoubtedly is that such foundation must be laid, —by challenging his attention to particular circumstances and occasions. ■ Greenleaf says : ‘ ‘ This course of proceeding is considered indispensable, from a sense of justice to the witness; for as the direct tendency of the evidence is to impeach his veracity, common justice requires that, by first calling his attention to the subject, he should have an opportunity to recollect the facts, and if necessary, to correct the statement already given, as well as, by a re-examination, to explain the nature, circumstances, meaning and design of what he is proved elsewhere to have said.” 1 Greenleaf s Ev. [14 Ed.] sec. 462. And the authorities make no distinction, in this regard, between verbal and written statements. 1 Greenl. Ev., supra; State v. Grant, 76 Mo. loc. cit. 132, and cases cited.
Now, if common justice and fair dealing require that a suitable foundation be laid in order to affect the credit of an ordioiary witness, one who only has his reputation for veracity at stake, it would seem that enough of the commodity, “ common justice ” should be left to bestow upon one acting in the double capacity of
Conceding, however, the constitutionality of the statute in question, and conceding further that the witness may be said to have done so voluntarily, still it' should also be conceded that, in testifying as a witness, he lost none of the rights and privileges pertaining to other witnesses. Connors v. People, supra.
VI. Some of the language of the counsel for the state in the closing argument cannot be sanctioned; it
The first sentence, copied above, has been sufficiently' commented on in the second paragraph of this opinion. The second statement, above copied, was mere personal' abuse of the prisoner, and not to be tolerated in any tribunal calling itself a court of justice. The third, sentence, above quoted, was not law, and was at war with, the presumption of innocence which continues with the-prisoner till the verdict of guilty overthrows that presumption. Such utterances as these have been so frequently, pointedly and recently condemned by this court,, that it would seem high time that the prosecuting: attorneys of this state should have heard of our rulings-in this regard. State v. Jackson, 95 Mo. loc. cit. 652,. et seq. and cases cited. See also Brown v. Swineford, 44 Wis. 282.
YII. The remark made by the court to counsel for the state from time to time, li to keep within the record,” had no appreciable effect, because he still kept up his line of obnoxious remarks, undeterred. by anything the court had said. A more pointed and effective rebuke should have been administered.
The judgment should be reversed and the cause remanded.