State v. Matthews
| Decision Date | 17 December 1937 |
| Citation | 111 S.W.2d 62,341 Mo. 1121 |
| Parties | The State v. Max Matthews, Appellant |
| Court | Missouri Supreme Court |
Appeal from Phelps Circuit Court; Hon. William E. Barton Judge.
Reversed and remanded.
Breuer & Northern, W. I. Mayfield, J. Andy Zenge, Jr., and Phil M. Donnelly for appellant.
(1) The court erred in giving Instruction 15 of its own motion after two attorneys had made their arguments to the jury; said instructions being a comment upon the evidence and singled out certain portions of the evidence, and called to the attention of the jury thereto. The instruction, in effect withdraws from the jury evidence which was properly admitted and was misleading and confusing. Sec. 3694, R. S. 1929; State v. Shaffer, 253 Mo. 337; State v Rogers, 253 Mo. 412; State v. Malloch, 180 S.W. 268; State v. Adkins, 225 S.W. 982; State v. Yates, 256 S.W. 813; State v. Clough, 38 S.W. 39; State v. Malone, 39 S.W. 794; State v. Grugin, 147 Mo. 55; 16 C. J., sec. 2477, p. 1036. (2) The court erred in admitting in evidence the alleged dying declaration of the deceased over the objections and exceptions of the defendant made and saved at the time because the major portion of said alleged dying declaration was beyond the scope of the rule laid down concerning the subject matter of a dying declaration. State v. Peak, 237 S.W. 469; State v. Kunkel, 289 S.W. 868; State v. Kyle, 225 S.W. 1017; State v. Jamerson, 252 S.W. 686; State v. Clift, 285 S.W. 707; State v. Majors, 44 S.W.2d 167. (3) The court erred in permitting hired counsel to conduct the prosecution for the reason that the duly elected and qualified prosecuting attorney of Laclede County, Missouri, was present and able and under the law required to prosecute the case. The sole objective of hired counsel is to secure a conviction irrespective of the rights of the defendant. The prosecuting attorney is under oath to see that the defendant gets a fair and impartial trial and that his rights are protected. Hired counsel are not under such oath but are in fact employed by those who are extremely prejudiced against the defendant, and this prejudice is evidenced by the fact that they were willing to spend their money to employ counsel to secure a conviction rather than have the prosecuting attorney prosecute the defendant. State v. 111 Mo.App. 427; State v. Rufus, 149 Mo. 406; State v. Loeb, 190 S.W. 299; State v. Richards, 67 S.W.2d 62; Sec. 3681, R. S. 1929. (4) The court erred in giving Instruction 7 on the part of the State because said instruction does not correctly define the offense of manslaughter and fails to set forth the necessary elements of the offense. State v. Conley, 255 Mo. 198; State v. Stewart, 212 S.W. 855; State v. Burrell, 252 S.W. 712.
Roy McKittrick, Attorney General, and Frank W. Hayes, Assistant Attorney-General, for respondent.
(1) The court did not err in giving Instruction 15 of its own motion. State v. Gartell, 171 Mo. 489; State v. Bongard, 51 S.W.2d 84; State v. Meyer, 221 Mo. 598; State v. Sharp, 233 Mo. 269; State v. Robinett, 281 S.W. 29; State v. Barrett, 240 Mo. 161; State v. Kennedy, 207 Mo. 528; State v. Gordon, 191 Mo. 114; State v. Gieseke, 209 Mo. 331; State v. Stewart, 212 S.W. 856; State v. Mace, 278 S.W. 719; State v. Bunch, 62 S.W.2d 439; State v. Hubbs, 294 Mo. 224; State v. Levan, 267 S.W. 935. (2) The court did not err in permitting the introduction in evidence of the dying declaration of the deceased. 30 C. J., p. 272, sec. 510; State v. Aurentz, 263 S.W. 181; State v. Majors, 44 S.W.2d 167; State v. Clift, 285 S.W. 707; State v. Hostetter, 222 S.W. 750. (3) The court did not err in permitting private counsel employed to assist the prosecuting attorney in making the opening statement and taking a part in the trial of the case. State v. Boyer, 232 Mo. 277; State v. Robb, 90 Mo. 30; State v. Coleman, 199 Mo. 112; State v. Kowertz, 25 S.W.2d 117.
Westhues, C. Cooley and Bohling, CC., concur.
Appellant was charged with murder in the first degree. Upon a trial he was found guilty of manslaughter and sentenced to imprisonment in the penitentiary for a term of five years. He appealed.
The case originated in Laclede County, where there was a mistrial due to a disagreement on the part of the jury. A change of venue brought the case to Phelps County, where appellant was convicted. Appellant was alleged to have fatally stabbed one Bert Tracy, on the evening of November 24, 1934. Appellant and deceased had lived on adjoining farms near Lynchburg, Laclede County, Missouri. Evidence was introduced to support the following statement of facts: Appellant and deceased had not spoken to each other in a friendly manner for about five or six years. During this time deceased had made threats against appellant. A number of these were made in person. For example, appellant testified that on one occasion deceased threatened to strike him with a sledge hammer; that on another occasion rocks were the instruments of attack; at another time a gun was displayed in a threatening manner, and that on the afternoon preceding the fatal stabbing deceased threatened to assault him with a car crank, but deceased's wife interfered and prevented the assault. There was also evidence of a number of threats made by appellant against deceased. The last of these was alleged to have been made a few hours before the stabbing, when appellant sharpened his knife and said he was going to use it on deceased. It may be stated that the evidence justifies the assertion that appellant and deceased had, as the boys say, "chips on their shoulders," ready and willing to fight at the first opportunity. Idle gossip was the occasion for the difficulty between the men on the afternoon of the killing, as well as the altercation which sent Tracy to his grave. This gossip was first brought to the attention of appellant and his wife at that time. Deceased was alleged to have said that one Marion Williams had made disparaging remarks concerning appellant's wife, which reflected on her moral character. It was at that time that deceased was alleged to have threatened appellant with a car crank. Marion Williams visited the home of appellant that same evening. He was asked by the Matthews whether he had made the remarks related by Tracy during the afternoon. Williams denied that he had, and stated that he would straighten the matter that evening after the church meeting. Williams testified that it was at this time that appellant sharpened his knife and placed it in his pocket remarking that he would have it ready for use that evening. This was denied by appellant.
All the parties concerned attended the church services that evening. They were: Williams and his wife, deceased and his wife and also appellant and his wife. At the conclusion of the services Williams requested appellant's wife and also Tracy and his wife to go outside the church building so he could straighten the question of the gossip. When these parties met outside, Williams, according to his own statement, undertook the impossible task of peaceably settling a dispute over gossip, between people who had not been on friendly terms for years. This alleged peace party soon broke out in a verbal battle, during which the participants called each other bad names and used language which they had not learned at the church meeting. The evidence did not definitely disclose appellant's whereabouts at this time, but all parties agreed that he did not join in the affray until the deceased called appellant's wife a liar. At this point appellant took to the defense of his wife and called Tracy a liar. A physical combat followed immediately, between appellant and deceased, and resulted in deceased receiving stab wounds in the abdomen, from which he died ten days later.
At the trial the vital point of dispute was whether appellant or deceased was the aggressor. Appellant's plea was self-defense. He introduced substantial evidence tending to prove that deceased advanced towards him with his hand raised; that deceased struck him over the head with a flashlight and continued striking him; that during this time he, appellant, cut the deceased with a knife to prevent further assault. The State introduced substantial evidence tending to prove that appellant was the aggressor; that he stabbed deceased before deceased struck him with a flashlight. The State also introduced evidence of statements made by appellant immediately after the altercation, which indicated that he was the aggressor. Appellant denied having made such statements and introduced evidence supporting his denial. It was shown by the defense that a number of the State's witnesses had, on previous occasions, that is, at the coroner's inquest and at the previous trial, given testimony much more favorable to appellant than that given at the trial in Phelps County. A number of witnesses testified that deceased's reputation as being a turbulent and quarrelsome man was bad.
Tracy died on the fourth day of December. On that day he made a statement concerning the manner in which he was cut by appellant. The statement was reduced to writing by the prosecuting attorney and signed by deceased. It was introduced by the State as a dying declaration.
Appellant has briefed five points upon which he seeks a new trial. It is alleged that the trial court erred in admitting the alleged dying declaration. It is asserted, by appellant in his brief, that this statement is beyond the scope of the rule concerning the subject matter of dying declarations. It reads as follows:
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