State v. Matthews

Decision Date20 December 1888
Citation10 S.W. 144,98 Mo. 125
PartiesThe State v. Wiley Mathews, Appellant
CourtMissouri Supreme Court

Appeal from Christian Circuit Court. -- Hon. W. D. Hubbard, Judge.

Affirmed.

Boyd & Delaney and Travers & Payne for appellant.

(1) The court erred in admitting evidence tending to show that after the killing, and some three hundred yards away from the scene, the defendant attempted to shoot and kill old man Greene. This was not a part of the res gestae, but was evidence of a distinct and independent crime, and was highly prejudical to defendant. State v. Rainsbarger, 31 N.W. 865; People v. Hamblin, 7 Crim. Law (Cal.) 846; Smith v. State, 17 Neb. 358; Smith v Reavis, 70 Mo. 289; State v. Reavis, 71 Mo 219; State v. Reed, 85 Mo. 195; State v Turner, 76 Mo. 351; State v. Meyers, 82 Mo. 559; State v. Beaucleigh, 92 Mo. 490. (2) The court erred in admitting evidence tending to show that in November, preceding the killing, the deceased, William Edens, was taken out by a body of men and whipped, and that defendant was one of the number. See authorities, supra.

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

Evidence is always admissible, for the prosecution, of preparations made by a defendant, or defendants, to commit a crime. Whart. Cr. Ev., (9 Ed.) sec. 753; Bur. Cir. Ev., pp 343-365; Rex v. Hunt, 3 Barn. & Ald. 356; Campbell v. Comm., 84 Pa. St. 187, 196.

Brace J. Ray, J., absent; Sherwood, J., dissents, and Barclay, J., not sitting.

OPINION

Brace, J.

The defendant Wiley Mathews, with William Walker, John Mathews and thirteen others, was indicted in the circuit court of Christian county for killing Charles Greene on the night of the eleventh of March, 1887. The defendant, upon a separate trial, was convicted of murder in the first degree. William Walker and John Mathews were also, on separate trials, each convicted of murder in the first degree, and their cases brought by appeal to this court, and in each of them, at the present term, decisions have been rendered sustaining their conviction. Ante, pp. 95, 119. The record in this case is substantially the same as in those, and as all the points, except those hereinafter noted, were ruled adversely to the defendant in each of those cases, those only will be noticed that are peculiar to this case.

I. Charles Graves, a witness for the state, in delivering his testimony, after having testified that immediately after the shooting, defendant came out of Edens' house, where Greene was killed, to where he was, and that he went down the railroad with him, testified: "He (defendant) hollered to a man who was walking up the railroad in the direction of where the killing was done, about one hundred and seventy-five or one hundred and fifty yards of Edens' house, I would suppose.

Q. "What was said there?

A. "Some one hollered at this man who was walking up the railroad, and asked him where he was going. Some one in the lead hollered 'Stop that man, or else kill him,' and the defendant, Wiley Mathews, hollered at him and says, 'Where in the hell are you going?' and the man on the railroad answered, 'I am not going far.' And he says, 'You had better go, and that damn quick,' and just started and turned his gun right down off his shoulder, and Joe Inman caught the gun and said, 'You shan't shoot that man at all.' I had a conversation with him myself right along directly after that a few minutes. I don't suppose we had walked more than fifteen or twenty steps until he said he had got him a man that night to save his Uncle John; that he shot him in the back with a shot gun, and he shoved his hand up on his back something similar to that. He said it was William Edens."

George W. Greene, the man above spoken of, testified that he believed the man who ordered him to stop was the defendant, although he would not swear positively to it.

It is contended that the admission of this evidence was error for the reason that it tended to prove an independent crime, i. e., an attempt to shoot Greene. Conceding that it does, the question asked was unobjectionable. There was no objection made to the evidence contained in the answer and no exception taken to its admission, and no reason assigned for its exclusion. Under repeated rulings of this court, the error, if any, could avail the defendant nothing on appeal as was held in State v. Walker, ante, p. 95, to which could be added numerous others if necessary. The evidence, however, was admissible. The defendant and his companions were going directly from the scene of the homicide, just perpetrated. Greene was going towards it. The defendant's halting him was an act, the character of which not only illustrated the character of the principal act in the tragedy, as part of a system of criminal acts, but was so intimately connected with it, as to make it a part of that very transaction, and to identify the defendant as an actor therein. Wharton Crim. Ev., secs. 31, 32, 38, 46 and 47; State v. Sanders, 76 Mo. 35; State v. Beaucleigh, 92 Mo. 490, 4 S.W. 666; State v. Rider, 95 Mo. 474, 8 S.W. 723.

II. There was no error in admitting the evidence, that in November preceding the killing, one of the deceased, William Edens, was taken out by a body of men and whipped, and that defendant was one of the number; or that the defendant and others once took the witness Graves out of the house. The evidence introduced tended to show that the crime in question was one of a system of criminal acts, and implicated the defendant in that crime, and this evidence tended to prove that he was concerned in the commission of this extraneous offense as a part of that system. Wharton Crim. Ev., sec. 48, note 4.

III. There was no error in the ruling of the court, that it was immaterial whether the witnesses Abbott and Nash had employed counsel in their own behalf. They had fully detailed their whole connection with the facts of the case, and the relation they sustained to it as witnesses was fully and obviously before the jury.

IV. The court committed no error in interrogating the witness Graves for the purpose of ascertaining whether he understood a question asked him, and had answered it according to his understanding, nor in refusing to permit the defendant to show by the sheriff that the witness Inman had been subpoenaed by the state and was in court. If he was in court, the defendant could have called him. The fact that he was a co-defendant in the same indictment prevented the state from calling him as a witness, without having first entered a nolle prosequi as to him, which the court had no power to compel, and which the prosecuting attorney could not do except under a sense of his official duty. And the defendant was entitled to no unfavorable deductions, from the mere fact that he was not called by the state under such circumstances.

V. The instructions given in this case cover the whole law of the case, and do not differ materially from those given in State v. William Walker, ante, p. 95; and State v. John Mathews, ante, p. 119, and it is unnecessary to review them. The criticism upon number 23, that it assumes the guilt of the defendant has nothing to rest upon, when that instruction is read in connection with the other instructions given, and when it is considered that this instruction is not treating of the question of defendant's guilt or innocence, but is confined to pointing out to the jury the evidence by which they may determine who of the witnesses testifying may be deemed accomplices, and to a cautionary instruction as to the weight to be given to the testimony of such witnesses. Instructions are to be read together as a whole, and when consistent, their meaning is to be collected from the whole context, and not from detached instructions or phrases in them, and if, when so treated, their meaning is obvious, the legal principles announced correct, and applicable to the case, they are safe guides for a jury.

VI. The refused instructions in this case are substantially the same as those refused in the preceding cases mentioned, and in regard to them, it is only necessary to say as to such as are peculiar to this case, that as in the case of John Mathews, no evidence was found upon which to base an instruction for murder in the second degree, manslaughter, or upon the hypothesis of a homicide committed by the defendant in the lawful defense of his uncle, John Mathews.

VII. It is assigned for error that Mr. Hammond, one of the attorneys prosecuting for the state, in his address to the jury misstated the law in the following language used by him: "The defense put in no evidence except to contradict Mr. Greene by Mr. Allen. Why are not the other defendants here to tell you all about this in behalf of this defendant? They know what occurred in the house and they might have been put on the stand to testify in this case, and tell you what took place in the house." In the cases of State v. Chyo Chiagk, 92 Mo. 395, 4 S.W. 704, and State v. Chyo Goom, 92 Mo. 418, 4 S.W. 712, it was held, under the provisions of Revised Statutes, 1879, sec. 1918, that on the separate trial of one defendant, his co-defendant, not on trial with him, was a competent witness for the defendant on trial, and that he had the right to call such co-defendant not on trial as a witness, and have him testify in his behalf. The statement of Mr. Hammond is in harmony with the law as thus laid down. When two co-defendants are on trial at the same time, it is optional with each of them whether he will go upon the stand and testify in behalf of himself and his co-defendant, and neither can require the...

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