State v. Colvin.

• Citation: 226 Mo. 446,126 S.W. 448
• Parties: STATE v. COLVIN.
• Decision Date: 15 March 1910
• Court: United States State Supreme Court of Missouri

126 S.W. 448

226 Mo. 446

STATE v. COLVIN.

Supreme Court of Missouri, Division No. 2.

March 15, 1910.

1. HOMICIDE (§ 340) — HARMLESS ERROR — INSTRUCTIONS.

An accused convicted of manslaughter in the second degree cannot complain of the giving of an instruction on murder in the second degree.

2. CRIMINAL LAW (§ 814) — INSTRUCTIONS — APPLICABILITY TO EVIDENCE.

Where there is no evidence to authorize an instruction on a particular grade of offense, none should be given thereon.

3. INDICTMENT AND INFORMATION (§ 189) — CONVICTION OF LOWER DEGREE OF OFFENSE — HOMICIDE — "MANSLAUGHTER IN SECOND DEGREE."

Rev. St. 1899, § 2369 (Ann. St. 1906, p. 1457), provides that, on indictment for any offense consisting of different degrees, the jury may find accused not guilty of the offense charged, and find him guilty of any degree of such offense inferior to that charged, and that any person found guilty of murder in the second degree or of any degree of manslaughter shall be punished according to the verdict of the jury, though the evidence shows a higher degree of homicide. Section 1826 (page 1267) defines "manslaughter in the second degree" as the killing of a human being without a design to effect death in a heat of passion but in a cruel or unusual manner. Held, that where an indictment charges murder in the second degree by means of violence, and the facts and evidence justify an instruction on manslaughter in the second degree, the indictment is sufficient to support a judgment of conviction of manslaughter in the second degree under proper instructions defining that offense.

4. HOMICIDE (§ 309) — INSTRUCTIONS — "MANSLAUGHTER IN SECOND DEGREE."

Rev. St. 1899, § 1826 (Ann. St. 1906, p. 1267), defines manslaughter in the second degree to be the killing of a human being without a design to effect death in a heat of passion in a cruel or unusual manner. An instruction defined manslaughter in the second degree in the language of the statute, and then stated that, if the jury believed that defendant beat deceased in a cruel and unusual manner from which he died, he should be found guilty of manslaughter in the second degree. Held, that the instruction was erroneous as omitting, in stating what the jury must find, the words "without design to effect death in a heat of passion."

5. CRIMINAL LAW (§ 823) — INSTRUCTIONS — CURE OF ERROR.

The omission of such phrase from the instruction was not cured by the fact that manslaughter in the second degree was correctly defined in an instruction given at defendant's request.

6. HOMICIDE (§ 309) — INSTRUCTIONS — MANSLAUGHTER.

Rev. St. 1899, § 1826 (Ann. St. 1906, p. 1267), defines manslaughter to be the killing of a human being without a design to effect death in a heat of passion in a cruel or unusual manner. Held, that an instruction was faulty which required the state to show that the beating administered by defendant to deceased was in a cruel "and" unusual manner.

7. HOMICIDE (§ 340) — APPEAL AND ERROR — HARMLESS ERROR — INSTRUCTIONS.

The error was not harmful to accused, in that it required the state to prove more than was necessary.

8. CRIMINAL LAW (§ 800) — INSTRUCTIONS — DEFINITION OF TERMS.

Where, on a prosecution for homicide, it appeared that deceased died from the effect of blows administered by defendant with his fists, it was proper in charging on manslaughter in the second degree under Rev. St. 1899, § 1826 (Ann. St. 1906, p. 1267), defining that crime to be the killing of a human being without a design to effect death in a heat of passion in a cruel or inhuman manner, not to attempt to define "cruel or unusual manner," but to leave it to the jury.

9. HOMICIDE (§ 203) — EVIDENCE — DYING DECLARATIONS.

The impression of impending and immediate death is essential to the admission of dying declarations.

10. HOMICIDE (§ 214) — EVIDENCE — DYING DECLARATION.

Dying declarations are properly restricted to the identification of the prisoner and the deceased, and to the act of killing and the circumstances immediately attending such act, and forming a part of the res gestæ.

11. HOMICIDE (§ 200) — DYING DECLARATIONS — AS INFRINGING RIGHT TO CONFRONT WITNESSES.

The admission of a dying declaration is no infraction of the constitutional provision that accused shall be confronted with the witnesses against him.

12. HOMICIDE (§ 203) — EVIDENCE — DYING DECLARATIONS — STATEMENT BY DECEASED AS TO HIS BELIEF IN IMPENDING DEATH.

No particular form in the statement of a dying declaration is required, and it is enough if it satisfactorily appears in any manner that the declaration was made under a sense of impending death, whether it be proved by the express language of the declarant or be inferred.

13. HOMICIDE (§ 204) — EVIDENCE — DYING DECLARATION — TIME OF DEATH.

The length of time which elapsed between the declaration and the death of the declarant furnishes no rule for the admission or rejection of a dying declaration, though it may serve as one of the exponents of the deceased's belief that his dissolution was or was not impending.

14. HOMICIDE (§ 203) — EVIDENCE — DYING DECLARATION — SENSE OF IMPENDING DEATH.

Where deceased was badly beaten in an encounter with defendant, and after five days of serious illness he sent in the nighttime for a neighbor to draw his will, and, after the drawing of the will, told the neighbor that the next time the neighbor heard of him he would be on his way to his grave, and that he could not get well, and he then detailed the circumstances of the encounter, and asked whether he had better commence an action against accused, or wait until he was dead, and let the state prosecute him, the statement was admissible as a dying declaration.

15. CRIMINAL LAW (§ 1159) — APPEAL AND ERROR — QUESTIONS OF FACT.

Where a witness testified that she heard certain statements made by deceased while in the same room with him, and another witness, who was without question in the room at the time, testified that the first witness was not there, it was a matter peculiarly within the province of the jury to determine whether the first witness heard the statement; and their determination will not be reviewed on appeal.

16. CRIMINAL LAW (§ 396) — EVIDENCE — ADMISSIBILITY — WHOLE OF CONVERSATION.

Where defendant on cross-examination on a prosecution for homicide elicited from a witness for the state a certain conversation between himself and deceased, the state was then entitled to the whole of the conversation, although it resulted in drawing out statements made by deceased relative to the encounter between himself and defendant.

17. CRIMINAL LAW (§ 695) — TRIAL — OBJECTIONS TO EVIDENCE.

An objection to a question to a witness on the ground that it was incompetent was insufficient.

18. HOMICIDE (§ 338) — APPEAL AND ERROR — HARMLESS ERROR — ADMISSION OF EVIDENCE.

Where certain dying declarations were admissible, accused was not prejudiced by the admission of testimony as to statements not constituting a dying declaration made by deceased relative to the encounter, where it was more favorable to him than the dying declaration.

19. HOMICIDE (§ 163) — EVIDENCE — ADMISSIBILITY — CHARACTER OF DECEASED.

On a prosecution for homicide, a witness was asked as to the disposition of deceased as being high tempered, abusive, or turbulent, and answered that he considered him a little contentious, and that he was abusive with witness on two different occasions. Held, that the testimony was improper, as it did not show that deceased had the reputation of being a violent and turbulent man in the neighborhood.

20. HOMICIDE (§ 340) — INSTRUCTIONS — HARMLESS ERROR.

On a prosecution for homicide, where it appeared that deceased was killed in an encounter with defendant, an instruction that, in the absence of qualifying facts and circumstances, the law presumes that a person intends the ordinary and probable result of his acts, could not have been prejudicial to defendant.

21. HOMICIDE (§ 175) — EVIDENCE — CAUSE OF DEATH.

Where, on a prosecution for homicide, a number of physicians, experts on the subject of discoloration from wounds, testified for the state and defendant, it was not error to refuse to permit a witness to testify to the extent of a discoloration from an injury which he had received on his own leg, as such evidence furnished no test as to the nature of the wounds inflicted on deceased.

Appeal from Circuit Court, Clark County; Chas. D. Stewart, Judge.

James A. Colvin was convicted of manslaughter in the second degree, and he appeals. Reversed.

Perry S. Rader, N. M. Pettingill, and Whiteside & Rutherford, for appellant. E. W. Major, Atty. Gen., and Jno. M. Atkinson, Ass't Atty. Gen., for the State.

GANTT, P. J.

This prosecution was commenced by the prosecuting attorney of Clark county, by information, on June 17, 1907. The prosecuting attorney of said county filed in the circuit court an amended information in due form, charging the defendant with murder in the second degree in the killing of one Joseph Murphy on January 10, 1907, by striking, hitting, beating, pushing, knocking, and by throwing said deceased with great force upon the frozen ground. The defendant was duly arraigned and pleaded not, guilty. He was put on his trial before a jury, and on the 18th of October, 1907, he was convicted of manslaughter in the second degree, and his punishment assessed at imprisonment in the penitentiary for a term of five years. Within due time he filed his motions for a new trial and in arrest of judgment, which were overruled, and he duly excepted, and was sentenced in accordance with the verdict of the jury, and from that judgment and sentence he has appealed to this court.

The evidence on the part of the state tended to prove that the deceased, Joseph Murphy, lived on a farm with his wife and children about 2½ miles southwest of the town of Luray, in Clark county, and had lived in that vicinity for more than 30 years. He was about 54 years of...