State v. Elkins

• Decision Date: 30 June 1890
• Citation: 14 S.W. 116,101 Mo. 344
• Parties: The State v. Elkins, Appellant
• Court: Missouri Supreme Court

14 S.W. 116

101 Mo. 344

The State v. Elkins, Appellant

Supreme Court of Missouri

June 30, 1890

Appeal from Ripley Circuit Court. -- Hon. John G. Wear, Judge.

Reversed and remanded.

J. C Sheppard and C. D. Yancey for appellant.

(1) The court erred in overruling defendant's peremptory challenge of the juror J. N. Poynor. State v Bumsrill, 37 Mo. 343; State v. Wyatt, 50 Mo 309; State v. Taylor, 64 Mo. 358. (2) The testimony was not sufficient to support the verdict. (3) The court erred in not excluding statements of deceased to the witness Caughron. State v. Simon, 50 Mo. 370; State v. McCannon, 51 Mo. 160; State v. Draper, 65 Mo. 335; State v. Rider, 90 Mo. 55. (4) The court erred in refusing to permit witness Logan to state what was said by Whitwell when he rode up to defendant and deceased immediately after the shot was fired. State v. Testerman, 68 Mo. 408; State v. Sanders, 76 Mo. 35; State v. Gabriel, 88 Mo. 631. (5) The court erred in refusing to allow defendant to show the interest of witness Whitwell in the prosecution. (6) Instruction number 2 is erroneous because not based upon any testimony in the case going to show that defendant "voluntarily sought for, brought on or provoked the difficulty;" and because it is argumentative and states abstract propositions of law. State v. Thompson, 83 Mo. 257. (7) The court should have also informed the jury, by proper instructions, of what the different degrees of crime consist. State v. Bryant, 55 Mo. 75; State v. Wyatt, 50 Mo. 309. (8) The court erred in compelling defendant to proceed to trial without having him furnished with a true copy of the indictment.

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

(1) The copy of the indictment was sufficient; the variation between it and the original was trivial and the objection is purely technical. (2) The juror J. N. Poynor testified "that his impression was based upon what he heard from rumor, and he was, therefore, competent. State v. Bryant, 93 Mo. 273. (3) The statements by deceased to Whitwell and Caughron were competent as dying declarations. State v. Chambers, 87 Mo. 406; State v. Kilgore, 70 Mo. 546; State v. Draper, 65 Mo. 335; State v. Simon, 50 Mo. 370; Wharton's Crim. Law, secs. 279, 282. Besides declarations to Whitwell were really a part of the res gestoe. State v. Brown, 64 Mo. 367. (4) It was not error to refuse to allow A. J. Whitwell to be cross-examined, as to whether he had indorsed notes or a note to secure the prosecution of defendant, or that he had made himself liable for the payment of fees to counsel, assisting the prosecuting attorney; even if this was true, it does not follow that he was biased or prejudiced, and his testimony affected thereby. But if the evidence was competent as tending to affect the credibility of the witness, its exclusion was not such an error as demands a reversal of the case. It is only where an error is committed by a trial court to the prejudice of a defendant that this court will reverse. State v. Cooper, 83 Mo. 698; State v. Griffith, 67 Mo. 287; State v. Robb, 90 Mo. 30; State v. Grate, 68 Mo. 22; State v. Holme, 54 Mo. 160.

Black J. Barclay, J., absent.

OPINION

Black, J.

-- Joseph Elkins, the defendant, was convicted of murder in the second degree for killing Lemuel A. Morrison on the eighth of February, 1886; his punishment being fixed at ten years' imprisonment.

From the evidence it appears the defendant, the deceased, John Logan and David Tarleton were at a store in the afternoon of the eighth of February, 1886. Morrison, the deceased, left the store and went to the house of Mrs. Ann Elkins, which was about a half mile distant. The defendant, Logan and Tarleton followed him, all carrying shotguns. When leaving the store the defendant swore he would run the deceased off or kill him. On the way Logan and Tarleton shot off their guns, but for what purpose does not appear. They went into Mrs. Elkins' house, and while there defendant and deceased got into a controversy. The defendant picked up his gun and left the house and the deceased followed. When not more than twenty or thirty feet from the house, the defendant shot the deceased, the buckshot entered the breast, and some of them passed through the body. The deceased was going towards, and was close to, the defendant when the latter fired. The deceased fell to the ground, then jumped up and with assistance got on his horse and rode to Mr. Caughron's, where he died on the second day after the shooting.

According to the defendant's witnesses the controversy in the house arose over a twist of tobacco belonging to Morrison, which defendant put in his pocket and afterwards handed back, saying it was all in fun. Tarleton says: "They then pushed each other round a little; defendant put his hand in his pocket; Morrison put his hand in his pocket; defendant walked to the door and picked up his gun; neither said anything; Morrison grabbed the gun and said, 'Joe, you are no part of a man;' defendant said, 'Turn my gun loose, I want to go home;' defendant then called to John Logan and said, 'Let's go;' Logan and myself went out of the house after defendant went out; Morrison then came to the door; defendant told Morrison not to come out here; Morrison then went right out in a run toward defendant; Morrison kept on running toward defendant; defendant told him to stop twice, then snapped, then told him to stop again; he did not stop, defendant then fired; Morrison was turning the end of fence when shot was fired, and was about five feet away; at the time the shot was fired Morrison's left hand was up; could not see his other hand; Morrison was drinking."

1. According to the bill of exceptions, when the cause came on for trial the defendant made it appear that the word leaden in the copy of the indictment which had been furnished him was written laden in the indictment. Because of this error he demanded a true copy and also further time to consider the same, both of which requests were refused, and of these rulings error is assigned. The indictment when first describing how the gun was loaded speaks of "leaden balls," and when describing the load discharged says: "laden balls aforesaid," and in describing the wounding it again speaks of "leaden balls aforesaid." The difference, therefore, between the indictment and the furnished copy is simply this, the copy in the three instances says leaden balls, and in one instance the indictment says laden balls aforesaid.

Where ordinary process is served by copy, if the defendant cannot be misled or prejudiced by a mistake in the copy, the service will be good. Furnace Co. v. Shepherd, 2 Hill (N.Y.) 414. It is not contended that the use of the word laden vitiates the indictment. The copy states in correct language that which every one must know the indictment means. The defendant could not have been misled or prejudiced in the least by the clerical error in the copy, and this being so he had not just ground upon which to demand another copy or time to consider the same.

2. A juror upon his examination stated that he heard of the killing of Morrison by defendant a few days after the occurrence; that what he then heard left an impression upon his mind, which impression he still retained; that he made no inquiry to ascertain the facts in the cause; that he could hear the evidence without bias, but it would require evidence to remove the impression; and that the impression was based upon what he heard from public rumor. This juror knew nothing about the case, save from public rumor, and though he says it would require evidence to remove the impression made upon his mind, still he says he could hear the evidence without bias. There is nothing in the examination as reported to show that he had any fixed or settled opinion about the case, and, under repeated rulings of this court, the challenge for cause was properly overruled. State v. Bryant, 93 Mo. 273, 6 S.W. 102; State v. Cunningham, 100 Mo. 382, 12 S.W. 376.

3. It is next objected that the court erred in the admission of evidence given by W. W. Caughron for the state. It will be remembered that the deceased, when shot, got on his horse and rode up to Mr. Caughron's house. Mr. Caughron met him at the gate. The evidence of Mr. Caughron, to which the objection is made, is this: "I met him and he said, 'I am killed;' he told that he was killed at that low-down Sam Elkins'." After cross-examination and on re-examination, the state asked the witness this question: "What did Morrison state, if anything, in relation to Elkins' having provoked the difficulty?" A. "He said 'he picked up a fuss with me and was running over me, and, because I did not want him to, he killed me. He called me a d -- d son of a bitch.'"

The foregoing evidence was admitted on the ground of dying declarations, and an objection made is that no sufficient foundation had been laid. The further evidence of Mr Caughron is as follows: "He lived from Monday evening until Wednesday morning; he asked me if I thought he could get well; he asked me if I heard the wind as it came out of his breast; he said, 'I am killed;' he told us that he was killed, but not to take on, that he would have no taking on about it, and said, 'for God's sake, Wes., don't take it up;' said Joe Elkins shot him. I remained with...