State v. Crawford

• Decision Date: 18 November 1889
• Citation: 12 S.W. 354,99 Mo. 74
• Parties: The State v. Crawford, Appellant
• Court: Missouri Supreme Court

12 S.W. 354

99 Mo. 74

The State v. Crawford, Appellant

Supreme Court of Missouri

November 18, 1889

Appeal from Dallas Circuit Court. -- Hon. W. I. Wallace, Judge.

Affirmed.

A. S Smith and John S. Haymes for appellant.

(1) The court erred in overruling the objections of the defendant and admitting evidence on part of the state, for that the indictment alleged that the offense was committed on the fourth of November, 1886, and that the fourth of November 1886, had not arrived. (2) The court erred in permitting the witness to answer the question, as to whether he had seen any persons on the streets some nights before. (3) The court erred in overruling the objections of the defendant, and admitting the testimony of S. H. Burris. (4) The court erred in sustaining the objections of the plaintiff, and refusing to permit the witness, S. H. Burris, to state whether or not he, "not very long before the fire, had had a difficulty and fight with a man named Hogg, and had assaulted and hurt Hogg; that they had never been reconciled, and that Hogg had made threats against the person and property of the witness. (5) The court erred in overruling the objections of the defendant and admitting the testimony of James Garrison. (6) The court erred in overruling the second objection of the defendant to testimony of James Garrison. (7) The court erred in overruling the third and general objection of the defendant to the testimony of James Garrison, as set out on pages 5 and 6 of brief. (8) The court erred in admitting the testimony of David Hitzhugh. (9) The court erred in admitting the testimony of George Crudington. (10) The court gave improper instructions on the part of the state. (11) The court refused proper instruction on the part of the defendant. (12) The separation of the jury is fatal to the cause of the state.

John M Wood, Attorney General, for the State.

(1) Appellant's objection to the proceedings under the indictment is not tenable. Stating the time imperfectly, or the offense to have been committed on a day subsequent to the finding of the indictment, is no grounds for staying or arresting proceedings thereon. R. S. 1879, sec. 1821; State v. Eaton, 75 Mo. 586; State v. Burnett, 81 Mo. 119. (2) The witness, S. H. Burris, when asked whether he had seen some parties in the street the night before, replied that he had seen defendant and A. B. Reeser at his store after business hours, some time before the fire. This, when taken in connection with the declarations of defendant, is a circumstance forming a link in the chain of testimony connecting defendant and Reeser with the burning. Burrill, Circ. Ev. 178-180. Evidence of the person, charged, lurking about the scene of the crime, taking notice of localities and objects, is always competent as a circumstance against him. Burrill, Circ. Ev. 350, 399. (3) The separation of the jury in this case is not such a violation of sections 1909 and 1966, Revised Statutes, 1879, as to justify a reversal. There is no pretense that the jurors were tampered with or approached by any one. State v. Payton, 90 Mo. 220; State v. Collins, 86 Mo. 245; State v. Bell, 70 Mo. 633, and authorities cited. (4) The motion for a new trial on the ground of newly-discovered evidence is not supported by affidavit, does not state the evidence is material, or what efforts had been made to discover it in time. State v. Fritterer, 65 Mo. 422; State v. Ray, 53 Mo. 345; State v. McLaughlin, 27 Mo. 111.

Sherwood J. Ray, C. J., absent.

OPINION

Sherwood, J.

-- The defendant was charged by the indictment with the crime of arson of the store-house of S. H. Burris, and his trial resulted in his conviction of that offense, his punishment being assessed at imprisonment in the penitentiary for the term of five years. From the judgment and sentence he appeals to this court, assigning frequent errors.

I. The charge that the indictment is fatally defective, for that it charges the crime to have been committed on a day subsequent to that on which the trial occurred, is answered by section 1821, Revised Statutes, 1879. The case of State v. Burnett, 81 Mo. 119, is an adjudication upon this section of the statute, directly in point, and directly opposed to the contention of the defendant's counsel.

II. There was no error committed in admitting testimony that defendant and his co-indictee, Reeser, were at the store-house of Burris after business hours, some time before the burning occurred. Evidence that the defendant was seen lurking about the scene of the alleged crime, taking notice of localities and objects; that, besides his proximity of vicinity to the locus of the crime, he had conversations with different persons, in which he made, in regard to the crime, covert, indirect or vague threats, more properly designated as "verbal intimations" and as "declarations of intention," was all competent evidence, and it is the constant practice to admit such evidence in courts of justice.

Treating of the subject of such "verbal intimations," an eminent text-writer says: "The verbal expressions under consideration are found to assume different shapes, according as they are the offspring of cold-blooded craft, or mere violent and hasty malignity. In the former case, they are sometimes managed with great art; they are thrown out voluntarily and purposely, it is true, but in so obscure and intangible a form as to amount to nothing more than mere general intimations. They are, in fact, parts of a system of preparation, but of the most preliminary kind, intended to explore the way for more direct action in future. The criminal ventures no farther than to hint at or obscurely allude to the act he had in contemplation. He proceeds warily, throwing out feelers, as it were, in advance, partly to sound the temper of those among whom he trusts himself; and, partly, to give an air of probability to the approaching event, and, yet, to disconnect himself from all apparent agency in producing it. Thus, a man, meditating the murder of his wife, was heard to say, -- 'my wife is a queer body; I should not be at all surprised if she were to take herself off, some fine morning.' Here, even the event itself is not directly mentioned; departure or disappearance is all that is spoken of; and even that attributed to a cause which, to a stranger, might appear abundantly sufficient to account for it, oddness or peculiarity of habits or character. In other cases, the intimations are given out in the form of reports, bearing indirectly upon the object in view, and intended to prepare the minds of friends and neighbors for the event. * * * Care is generally taken, in uttering these intimations, to adapt them to the ideas and intelligence of those to whom they are addressed, or upon whom they are intended to make an impression. Thus, omens, auguries and predictions are relied on, among those whose habits and limited intelligence induce them to place confidence in such sources of knowledge. But, notwithstanding the art which may be employed, they frequently fail of their intended effect, from the mere want of the 'art to conceal' it. Their essential clumsiness is sometimes manifest, and the result of their utterance is the very reverse of that intended, namely, to fix attention upon the party uttering them, and thus to establish between him and the event, alluded to, the very connection he seeks to avoid. Hence, when the event comes to happen, the expression anticipating it is at once remembered. There is what the civilians would call damnum praedictum et malum secutum, -- a very pregnant and reasonable ground of suspicion. On this account, expressions of this kind often become important, as elements of circumstantial evidence, constituting a material link in the chain of precedent circumstances, tending to fix a crime charged, upon the party accused of its commission." Burrill, Circ. Evid. [3 Ed.] pp. 333, 334, 335.

Similar remarks are indulged in by the same and other authors as to "declarations of intention." lb. 338; Wills, Circ. Evid. 45; see also State v. Dickson, 78 Mo. 438; State v. Grant, 79 Mo. 113; Carver v Huskey, 79 Mo. 509; Culbertson v. Hill, 87 Mo....