The State v. Mullins
| Citation | 14 S.W. 625,101 Mo. 514 |
| Parties | The State v. Mullins, Appellant |
| Decision Date | 17 November 1890 |
| Court | United States State Supreme Court of Missouri |
October, 1890
Appeal from Pettis Criminal Court. -- Hon. John E. Ryland, Judge.
Reversed and remanded.
G. W Barnett and W. D. Steele for appellant.
(1) The court erred in permitting the state to prove what Newton Hughes said at the coroner's inquest. State v Young, 99 Mo. 666; People v. Willett, 92 N.Y. 29; 3 Am. & Eng. Ency. of Law, 494. (2) The court also erred in admitting the evidence of defendant taken at his examination at the coroner's inquest. People v. McMahon, 15 N.Y. 384; People v. Mindon, 103 N.Y. 690; Wharton's Crim. Law, sec. 690; State v. Thomas, 99 Mo. 260; State v. Hayden, 45 Ia. 11. (3) The court erred in the instructions given in behalf of the state.
John M. Wood, Attorney General, for the State.
(1) The statements of Hughes at the coroner's inquest, made in the presence of defendant, were admissible in evidence. 1 Greenl. Ev., sec. 197; 1 Roscoe's Crim. Law, sec. 56; State v. Miller, 49 Mo. 505. (2) Defendant's written testimony taken before the coroner was admissible. State v. Young, 99 Mo. 666. (3) The instruction as to manslaughter in the second degree was proper under Revised Statutes, 1879, section 1243, and the instructions on self-defense are in accordance with the cases of State v. Gilmore, 95 Mo. 554; State v. Partlow, 90 Mo. 608. (4) The seventh instruction given for the state was proper. State v. Hardy, 95 Mo. 455. (5) The tenth and eleventh instructions, as to testimony of defendant and his wife, were approved in State v. Young, 99 Mo. 666, and State v. Brooks, 99 Mo. 137.
-- The defendant prosecutes this appeal from a conviction of manslaughter in the second degree, had upon an indictment for murder. The defendant, it is conceded by the evidence, shot and killed Henry Thatcher. The defense is justifiable homicide in self-defense.
The deceased was a negro, and the tenant of the defendant, residing in a house on the defendant's farm. There had been difficulty between the parties prior to the homicide, and there is much evidence to the effect that the deceased had whipped and kicked the defendant on several occasions; and that he had threatened to kill the defendant, which threats had been communicated to defendant. The deceased was a large, strong man, while defendant was quite the reverse. On the day preceding the killing, the defendant borrowed a pistol and purchased cartridges to fit it, stating to the person from whom he got the pistol that some one had been stealing his horses and he wanted to look after them. The remark must have had reference to deceased, as the defendant had suspected him of using the horses for purposes not contemplated in their lease.
The evidence shows that in the early morning of the thirteenth of July, 1886, the deceased went to the pasture lot to get the horses. The defendant and one Newton Hughes, who lived with defendant, were in the pasture lot at that time. There seems to be no doubt but the parties had some difficulty at this time, and that defendant shot from seven to twelve times from two pistols which he had on his person, killing the deceased. Defendant went to the nearest justice of the peace, and gave himself up, and the justice in the course of two or three hours thereafter held a coroner's inquest over the body. Persons who were at that inquest testify that they found the body in a ravine, ditch or washout, some two or three feet wide and eighteen inches in depth, lying close to a pile of brush, with six gunshot wounds. The evidence tends to show that one ball passed through the apex of the heart, and another through the neck, breaking the spinal column. The expert evidence is to the effect that the heart wound was fatal, though the deceased might have walked a few steps after receiving it, but the neck wound would instantly stop all voluntary locomotion.
The defendant testified in his own behalf, that he spoke to deceased about the oats as the latter came up; that deceased cursed him, and picked up a club and started at him; that he retreated towards Hughes for a short distance, and then commenced shooting, and that deceased fell within a few feet of that place.
Newton Hughes, who saw the whole affair, was not called as a witness on this trial by the state or by the defendant, though it seems he was within reach of the process of the court. The justice who held the inquest testified that defendant and Hughes were present and both testified on that occasion; that Hughes stated, when giving his evidence, that the shooting took place at a place then pointed out, which was sixty or seventy yards from where the body was found. The justice says he cannot say whether these statements were made in the hearing of defendant or not. A person who was a juror on that occasion testifies that Hughes there stated, both in his evidence and before they commenced holding the inquest, that the shooting occurred at a place which he then pointed out, which was from forty to seventy yards distant from the body, and that the statements were made by Hughes in the presence of defendant, and were not questioned by the latter. Other persons who were jurors at the inquest gave evidence of a like character. The defendant objected to all of this evidence as to what Hughes stated at the inquest, but the objections were overruled, and the defendant excepted.
It is sought to justify the admission of these statements made by Hughes on the ground that they are to be treated as implied confessions. The rule of evidence which allows the silence of a person to be taken as an admission or confession of the truth of the matters stated in his presence should be applied with caution, for it is often much abused. The rule is based upon the assumption that the party is at liberty to speak, and proceeds upon the ground that the circumstances are such as to call upon him for a reply. The rule has no application whatever to statements given in evidence in a judicial proceeding; for in such cases he is not at liberty to interpose and contradict the evidence when and where he pleases. 1 Greenl. Ev. [14 Ed.] sec. 197; 3 Am. & Eng. Ency of Law, 494. Nor does the rule apply where he is under arrest. State v. Young, 99 Mo. 666, 12 S.W. 879, and cases cited. A coroner's inquest is a judicial proceeding (32 Mo. 375), and it follows that no inference can be drawn from the defendant's silence on that occasion, that he admitted the truth of the matters stated by the witnesses when giving their evidence; and so it has been elsewhere held. People v. Willett, 92 N.Y. 29.
Some of these statements of Hughes, it is said, were made before the commencement of the examination of the witnesses; but so far as we can see they were conversations between Hughes and persons other than the defendant, and were not addressed to the defendant, or designed to induce any action on his part. It would have been an intrusion...
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