12 S.W. 879 (Mo. 1890), State v. Young

Citation:12 S.W. 879, 99 Mo. 666
Opinion Judge:Sherwood, J.
Party Name:The State v. Young, Appellant
Attorney:John S. Blackwell for appellant. John M. Wood, Attorney General, for the State.
Judge Panel:Sherwood, J. Ray, C. J., and Black, J., concur in paragraphs 1, 2, 3, 6 and 7, of the foregoing opinion. Ray, C. J., also concurs in paragraph 5; but Black, J., does not. Brace and Barclay, JJ., concur in paragraphs 1, 2 and 3, they dissent as to paragraphs 6 and 7.
Case Date:January 27, 1890
Court:Supreme Court of Missouri
 
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Page 879

12 S.W. 879 (Mo. 1890)

99 Mo. 666

The State

v.

Young, Appellant

Supreme Court of Missouri

January 27, 1890

Appeal from Lafayette Circuit Court. -- Hon. J. E. Ryland, Judge.

Reversed and remanded.

John S. Blackwell for appellant.

(1) The court below erred in permitting the witness Wilson to testify as to what was said by one Craft in the presence of the defendant after he was arrested. Wharton's Criminal Evidence [8 Ed.] sec. 680; United States v. Brown, 4 Cranch (C. C.) 508; Com. v. Kinney, 12 Met. 235; Com. v. Walker, 13 Allen, 510; State v. Walker, 78 Mo. 388; Com. v. McDermott, 123 Mass. 470; State v. Glahn, 97 Mo. 694; Slattery v. People, 76 Ill. 217; Bob v. State, 32 Ala. 560; State v. Hamilton, 55 Mo. 520. (2) The court erred in permitting the state to introduce as evidence the application and affidavit of defendant for a continuance of the cause at the October term, 1888, of said court. (3) The court erred in permitting the paper purporting to be signed by defendant to go to the jury without having laid the proper foundation therefor by calling defendant's attention to it. State v. Elkins, 63 Mo. 159; Prewitt v. Martin, 59 Mo. 325; State v. Foye, 53 Mo. 336; State v. Starr, 38 Mo. 270; State v. Parker, 96 Mo. 393; Wharton's Criminal Evidence [8 Ed.] sec. 483 and note; State v. Stein, 79 Mo. 332; Steamboat Chas. Morgan, 115 U.S. 69; Gregory v. Cheatham, 36 Mo. 155; Stephens v. People, 19 N.Y. 549; Samuels v. Griffith, 13 Iowa 103; State v. Devlin, 7 Mo.App. 36. (4) The court erred in instructing on murder in the first degree; the evidence did not warrant it. State v. Holme, 54 Mo. 153; State v. Underwood, 57 Mo. 40; State v. O'Hara, 92 Mo. 59; State v. Foster, 61 Mo. 549. (5) The court erred in giving instructions for the state. (6) It also erred in not giving instructions numbered 4, 5 and 6, as asked by defendant. State v. Branstetter, 65 Mo. 149; State v. Edwards, 70 Mo. 480; State v. Curtis, 70 Mo. 600; State v. Ellis, 74 Mo. 207; State v. Berkley, 92 Mo. 41. (7) There should have been given an instruction defining murder in the second degree. State v. Banks, 73 Mo. 592; State v. Mathews, 20 Mo. 55; State v. Stonum, 62 Mo. 596; R. S. 1879, sec. 1908. (8) The court erred in permitting Hardin, who was hired to assist the prosecuting attorney, to close the argument to the jury. R. S. 1879, sec. 1908. (9) The court further erred in permitting said Hardin to make improper remarks and arguments to the jury. The admonition to him by the court to keep within the record did not cure the error. It should have stopped him in his argument and rebuked him for it and corrected his erroneous misstatements. State v. Barham, 82 Mo. 67; State v. Lee, 66 Mo. 165; State v. Kring, 64 Mo. 591; State v. Foley, 12 Mo.App. 431; State v. Rothschilds, 68 Mo. 58; State v. Jaeger, 66 Mo. 173; Ritter v. Bank, 87 Mo. 574.

John M. Wood, Attorney General, for the State.

(1) The confessions and admissions made by the defendant to the witnesses who testified thereto (as shown by the testimony taken by the court in the absence of the jury) were not induced or extorted by means of any promises or threats, or other influences calculated to excite his hopes or fears, and they were admissible. State v. Hopkirk, 84 Mo. 278; Whar. Crim. Ev. [9 Ed.] secs. 672 and 673; 1 Green. Ev., sec. 223; 1 Roscoe's Crim. Ev., p. 68. (2) Defendant had requested an inmate of his house to tell his wife to come into the room where he was, just as he was arrested and was looking for a different shirt from the one he had had on the night before; when the marshal requested Craft, who was his deputy, to go and tell her, and when Craft returned he said in the presence and hearing of the defendant, "You need not go any further; you have got the right man." This was such a declaration as under the circumstances would ordinarily call for a reply from a person situated as defendant was, and was admissible. 1 Green. Ev., sec. 197; 1 Roscoe Crim Ev., sec. 56. (3) The expert testimony as to whether the wounds were sufficient to cause death was based upon the testimony of a witness, who had examined the wounds, and was competent. 1 Green. Ev., sec. 440; State v. Klinger, 46 Mo. 224. (4) Evidence of riotous and violent conduct by other persons in the streets of the town of Corder, or about defendant's house, on the night of and after Ferguson was killed, was incompetent, and properly excluded. The occurrences were not near enough to the homicide in point of time to constitute part of the res gestae, nor was there any offer to connect deceased with such persons, or the act of defendant to any such cause. State v. Swain, 68 Mo. 605. (5) The affidavit for a continuance made by the defendant at a previous term was competent evidence against him of his admissions. State v. Hayes, 78 Mo. 307. (6) There were no errors committed in the admission or exclusion of testimony, which tended to prejudice the substantial rights of the defendant, or which will justify a reversal. State v. Holme, 54 Mo. 160; State v. Grate, 68 Mo. 22. (7) The third, fifth, seventh and eleventh instructions, given on the part of the state, are substantially the same as those given in the case of State v. Talbott, 73 Mo. 347, on the same points. (8) The third and fourth instructions, given on the part of the state, were the counterparts of instruction number 1, given on the part of defendant, and were correct. State v. Talbott, 73 Mo. 347; State v. Thomas, 78 Mo. 327; State v. Jones, 86 Mo. 627; State v. Gee, 85 Mo. 647. (9) The fifth instruction, on the part of the state, was proper. State v. Talbott, 73 Mo. 356, and authorities cited. (10) The seventh instruction is a literal copy of an instruction approved in the Talbott case. (11) The ninth instruction, in regard to the verdict and punishment, is in accordance with the statute. The jury were similarly instructed in the case of State v. Thomas, supra. (12) The eleventh, as to the credibility of the witnesses, is correct. State v. Thomas, supra; State v. Talbott, supra; State v. Gee, supra. (13) The twelfth and thirteenth instructions, given on the part of the state, as to the credibility of the testimony of defendant and his wife, were proper. R. S. 1879, sec. 1918; State v. Cook, 84 Mo. 40; State v. Miller, 93 Mo. 263. (14) There was no error in the refusal of the fifth instruction, asked by defendant. It was fully embraced within other instructions which were given. (15) There is no evidence in the case that deceased "first assaulted and struck defendant, and that deceased, in such assault and striking, used insulting, profane, indecent or abusive language to or about defendant, and that defendant, in immediate retaliation," etc., stabbed and killed the deceased, as assumed in the fifth instruction asked by defendant. Nor is there any evidence upon which to predicate the sixth instruction asked by him. State v. Gilmore, 95 Mo. 554; State v. Stephens, 96 Mo. 638. Where the homicide has been committed and the further inquiry relates to the mental condition prompting it, only what the doer knew is relevant, for that alone could have influenced his mind or in any way contributed to the doing. 2 Bish. Crim. Proc., sec. 611. (16) The remarks of counsel, in his closing argument, were not such as to justify a reversal. State v. Zumbunson, 86 Mo. 111; State v. Emory, 79 Mo. 461. (17) There was no error in permitting Mr. Hardin to assist in the prosecution or to make the closing argument. State v....

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