State v. Rider

• Citation: 1 S.W. 825,90 Mo. 54
• Parties: The State v. Rider, Appellant
• Decision Date: 15 November 1886
• Court: United States State Supreme Court of Missouri

1 S.W. 825

90 Mo. 54

The State v. Rider, Appellant

Supreme Court of Missouri

November 15, 1886

Appeal from Saline Criminal Court. -- Hon. John E. Ryland, Judge.

Reversed.

Boyd & Sebree and Davis & Wingfield for appellant.

(1) The court erred in allowing Mrs. Tallent to testify to what deceased said to her in the cornfield after he was shot. What he said was not a dying declaration and not admissible as such. 1 Greenlf. on Ev., (13 Ed.) sec. 1569; State v Jefferson, 77 Mo. 136. It was not part of the res gestae. The court erred in permitting Mrs. Tallent to testify that Mrs. Rider told her in December, 1883, that "Rider had beat her up with a club, and she was afraid he would kill her." It had no connection with the case, and was hearsay. It was error. The testimony of Mary Rider as to defendant beating her in December, 1883, was improperly admitted. Its tendency was to show that defendant had been guilty of another crime, and had no tendency to prove the commission of the one for which he was on trial, or any ingredient of it. (2) The court erred in refusing to permit witnesses, Johns, Hinton, and Hightower, to testify as to threats made by the deceased, Tallent, in March, 1885, and in November, 1884. The fact that such threats had been made, in connection with the other evidence in the case, tended strongly to corroborate defendant's statement that deceased assaulted him with the axe, as well as to corroborate Johns' testimony at to other threats. State v. Hayden, 83 Mo. 198; State v Elkins, 63 Mo. 159; State v. Alexander, 66 Mo 148; State v. Lee, 66 Mo. 165; Carver v. Husky, 79 Mo. 509; Wharton's Crim. Ev. [8 Ed.] sec. 857; State v. Grant, 79 Mo. 113; State v. Adams, 76 Mo. 355. (3) The court erred in giving the second instruction asked by the state. The instruction is not the law in this case, first, because it warranted the jury in finding defendant guilty of murder in the first degree, if the intent to kill existed without reference to whether there was deliberation or not; and also warranted such finding though the intent was not to kill, but simply to do bodily harm. In this case the jury were bound to either acquit, or find for murder in the first degree, under the instructions. R. S. 1879, sec. 1232; State v. Mitchell, 64 Mo. 191; State v. Deering, 65 Mo. 530; State v. Shock, 68 Mo. 552; State v. Hill, 69 Mo. 451; State v. Pacquett, 75 Mo. 330. Second, it assumes the law to be that, without any overt act on the part of defendant, from which deceased could have apprehended danger to himself, the deceased might have made a deadly assault upon defendant, and defendant have no right to defend himself from its consequences. State v. Thompson, 83 Mo. 257. Third, it instructs the jury to disregard legal and proper testimony, and is calculated to mislead. (4) The court erred in permitting the state's attorney to inquire as to the general reputation of defendant for truth and veracity, morality and chastity. The defendant, under section 1918, of Revised Statutes, does not occupy the position of an ordinary witness, and cannot, by the express terms of the statute, be cross-examined, contradicted, or impeached, as any other witness. To place any other construction upon this statute, makes it contradict itself. State v. Clinton, 67 Mo. 390; 1 Greenl. on Ev. [13 Ed.] secs. 446, 455, 456; State v. McGraw, 74 Mo. 573.

B. G. Boone, Attorney General, for the state.

(1) Declarations made by one apprehending death, in regard to the identification of the defendant, and the act of killing, and all the circumstances immediately attending the act, and forming a part of the res gestae, are admissible in evidence. Whar. Crim. Ev. [8 Ed.] sec. 276, et seq.; State v. Millen, 13 Mo. 30; State v. Simon, 50 Mo. 370; State v. Draper, 65 Mo. 355; State v. Kilgore, 70 Mo. 546; State v. Johnson, 76 Mo. 121; State v. Jefferson, 77 Mo. 136; State v. Chambers, 87 Mo. 406. The statements made by Tallent to his wife, just after he was shot, were, under the above rule, admissible as dying declarations, being made in extremis, and constituting part of the res gestae. (2) Evidence of a defendant's conduct on other occasions, even though it discloses another crime, is admissible, although it has no other connection with the matter under inquiry than that it tends to explain or throw light upon what were his motives and intentions in committing the crime with which he is charged. Ros. Crim. Ev. [7 Ed.] 90, 92; Whar. Crim. Ev. [8 Ed.] sec. 456; State v. Zellers, 2 Halstead [N. J.] 220; Hendrickson v. People, 1 Park. Cr. R. [N. Y.] 406; Baalam v. State, 17 Ala. 451; State v. Ford, 3 Strobhart [S. C.] 517; Heath's Case, 1 Harrison, 507. Under the general rule, above stated, facts explanatory of why defendant's wife went to Tallent's, and why he took her across the river, were admissible in evidence. Defendant sought to extenuate his crime by attempting to prove that an improper intimacy had existed between his wife and Tallent. This could only be shown to be false, and defendant's true motive for the killing disclosed by evidence as to the cause of the wife's leaving. If this evidence disclosed the fact of defendant's brutal treatment of his wife he cannot complain. (3) The rule as to the admission of evidence as to threats, varies with the circumstances in each particular case. In the case at bar there is no evidence that deceased was making any effort to carry any threats into execution, or that his conduct at the time he was killed was such as to cause defendant to fear that he was in great bodily danger. Hence, evidence as to threats was properly excluded. State v. Elkins, 63 Mo. 159; State v. Evans, 65 Mo. 574. The testimony offered by defendant, to prove that deceased was in the habit of carrying a revolver, was properly excluded. For the purpose of impeaching the testimony of a witness, the inquiry need not be confined to his veracity alone, but the examination may be extended to his general moral character. State v. Shields, 13 Mo. 236; State v. Montgomery, 28 Mo. 594; Day v. State, 28 Mo. 422; State v. Hamilton, 55 Mo. 520; State v. Breeden, 48 Mo. 507; State v. Clinton, 67 Mo. 391; State v. Miller, 71 Mo. 590; State v. Grant, 79 Mo. 133. (4) When a defendant, in a criminal case, testifies in his own behalf, the state may impeach his character before he offers evidence that it is good; his testimony is subject to the same rules and tests as that of other witnesses. State v. Clinton, 67 Mo. 380; State v. Cox, 67 Mo. 392; State v. Rugan, 68 Mo. 214; State v. Testerman, 68 Mo. 408; State v. Porter, 75 Mo. 178; State v. Palmer, 88 Mo. 568. (5) The second instruction correctly declared the law. State v. Starr, 38 Mo. 270; State v. McGuire, 69 Mo. 200; State v. Harris, 73 Mo. 287; State v. Brown, 64 Mo. 367; State v. Dunn, 80 Mo. 693, and cases cited.

OPINION

Henry, C. J.

At the September term, 1885, of the Saline criminal court the defendant was indicted for murder for killing one R. P. Tallent, and was tried at the November term of said court, 1885, and convicted of murder in the first degree. From that judgment he has appealed to this court.

The evidence for the state proved that he killed the deceased, and of that fact there is no question. It also tended to prove that he armed himself with a gun, and sought the deceased with the intent to kill him. The evidence tended to prove that the relations between the defendant and his wife were not of the most agreeable character, and that the deceased was criminally intimate with her, and on the day of the homicide had taken her off in a skiff to Brunswick. That defendant went in search of his wife to the residence of the deceased, armed with a shot gun, and met the latter near his residence. What then occurred no one witnessed, except the parties engaged, but defendant testified as follows: "Well, me and Mr. Merrill went to this path that was leading toward the river. When we come to that path Mr. Merrill stopped, and I went on in the direction of Mr. Tallent's house, to see if I could learn anything about where my wife was, and I discovered no sign of her there, and I started back north on this path, going down on the slough bank; after going down some distance from the bank I meets Mr. Tallent; I spoke to Mr. Tallent and asked him if he knew where my wife was, and he made this remark: 'I have taken her where you won't find her;' and he says, 'God damn you, we will settle this right here.' He started at me with his axe in a striking position, and I bid Mr. Tallent to stop; then he advanced a few feet, and I fired. I fired one time." The axe of deceased, found on the ground, had a shot in the handle near the end farthest from the blade, and on the same side as the blade, and this evidence had a tendency to corroborate the testimony of the accused, showing that the axe was pointing in the direction from which the shot came, and was held in an upright position.

The court, for the state, instructed the jury as follows:

"The court instructs the jury, that if they believe from the evidence that prior to the killing of the deceased, the defendant prepared and armed himself with a gun, and went in search of, and sought out, deceased, with the intention of killing him, or shooting him, or doing him some great bodily harm, and that he did find, overtake, or intercept, deceased, and did shoot and kill deceased while he was returning from the river to his home, then it makes no difference who commenced the assault, and the jury shall not acquit the defendant; and the jury are further instructed that in such case they shall disregard any and all testimony tending to show that the character or reputation of deceased for turbulency, violence, peace and quiet was bad, and they shall further disregard any and...