State v. Turlington

Decision Date27 January 1891
Citation102 Mo. 642,15 S.W. 141
PartiesSTATE v. TURLINGTON.
CourtMissouri Supreme Court

4. An application for change of venue was supported only by the affidavit of defendant and by that of another person. The latter stated that, after diligent efforts, it was impossible to secure supporting affidavits of two disinterested and credible citizens, to the effect that defendant could not have a fair trial because of the prejudice of the inhabitants of the county, though many of the persons applied to had admitted that they knew that such prejudice existed, but said that they feared to make an affidavit to that fact, believing that, if they did, they would be in danger of personal violence from the citizens. Held, that this was not a sufficient compliance with Rev. St. Mo. 1889, § 4156, requiring such application to be supported by the affidavits of two disinterested and credible citizens, and was properly refused.

5. On a trial for murder, defendant's application for a continuance, on the ground of the absence of witnesses, set out that they would testify that his mind had been unsettled by a blow on the head received in childhood, and that in consequence, while he was able to distinguish between right and wrong, he had ever since been seized, from time to time, with an ungovernable mania to do evil or violent acts, and at these times was unable to control himself. Held that, as defendant could distinguish between right and wrong, these facts would constitute no defense, and it was not error to refuse the continuance.

6. It is competent on cross-examination in a criminal trial to introduce a letter written by witness to defendant after the offense, tending to show his sympathy and partisanship with him, with a view of affecting the witness' credibility, especially when the letter itself contains no statement of fact prejudicial to defendant's case.

7. On a trial for murder, where it appeared that deceased expressed his opinion that death was impending, saying, "Jim, I am done for, I am going to die," and again that he was pretty nearly wound up, he had only a short time to live, and then made a statement of the circumstances of his death, held that, notwithstanding the fact that after this statement and after his wounds had been dressed he asked the doctors to tell him what his condition was, a sufficient foundation had been laid for the introduction of his statements as dying declarations.

8. When a prisoner confined in the county jail for a misdemeanor, when the door is temporarily open, presents a loaded and cocked pistol at the sheriff, his lawful custodian, demanding to be permitted to pass out, his attempt to escape is a felony, under Rev. St. Mo. § 3702, and the sheriff has a right to oppose force to force, and, if necessary to prevent the escape, to kill the prisoner, and the fact that he immediately fires upon him will not justify the latter in killing the sheriff.

9. In such a case, though the defendant testify that he had no purpose of killing deceased, when he presented his pistol at him, but only intended to frighten him into permitting the escape, and that when deceased fired first he was so frightened himself that he turned to run, and fell on his hands and knees, and his pistol was accidentally discharged, and shot the deceased, it was not error to refuse to instruct the jury that if, when the sheriff drew his pistol and fired at defendant, defendant suddenly, and without premeditation or deliberation, fired the shot which killed deceased, he is guilty of murder in the second degree only.

10. And in view of the testimony of the doctors that the bullet passed through deceased's body, between the eighth and ninth ribs, in an almost horizontal direction, ranging downwards, it was not error to refuse an instruction as to manslaughter, based on defendant's testimony that the shot was fired accidentally, while he was on his hands and knees.

Appeal from circuit court, Cooper county; E. L. EDWARDS, Judge.

Defendant was convicted of murder in the first degree by the circuit court of Cooper county for the killing of Thomas C. Cranmer. From the judgment he has appealed to this court. The indictment upon which the conviction was had is as follows: "The grand jurors for the state of Missouri, impaneled, sworn, and charged to inquire within and for the body of the county of Cooper and state aforesaid, upon their oath present and charge that John O. Turlington, alias William E. West, and Wes Hensley, on the 14th day of June, 1890, at the county of Cooper and state of Missouri, in and upon one Thomas C. Cranmer, then and there being, feloniously, willfully, deliberately, premeditately, and of their malice aforethought, did make an assault, and with a certain pistol, a deadly weapon, which was then and there loaded with gunpowder and leaden bullets, and by them, the said John O. Turlington and Wes Hensley, held in their hands, the said John O. Turlington and Wes Hensley did then and there feloniously, willfully, deliberately, premeditately, and of their malice aforethought, shoot off and discharge at and upon him, the said Thomas C. Cranmer, thereby and thus striking the said Thomas C. Cranmer with one of said leaden bullets, inflicting on and in the left side of his body one mortal wound of the diameter of half an inch, and of the depth of eight inches, of which said mortal wound the said Thomas C. Cranmer, from the 14th day of June, in the year aforesaid, till the 15th day of June, in the year aforesaid, at Boonville, in the county aforesaid, did languish, and languishing did live, on which said 15th day of June, in the year aforesaid, the said Thomas C. Cranmer, at the city of Boonville, in the county aforesaid, of the mortal wound aforesaid, died; and so the grand jurors aforesaid, upon their oaths aforesaid, do say that the said John O. Turlington and the said Wes Hensley, him, the said Thomas C. Cranmer, in the manner and by the means aforesaid, feloniously, willfully, deliberately, and premeditately, and of their malice aforethought, did kill and murder, against the peace and dignity of the state." The sufficiency of this indictment was questioned.

To the indictment defendant interposed a plea in abatement, assigning, as grounds therefor: (1) That the judge, in his charge to the grand jury, used improper and prejudicial language; and (2) that defendants had not been given opportunity to object to the array of grand jurors, nor to the competency or qualification of any of the members thereof. There was a third ground, which was not insisted upon. This plea was supported by the affidavit of the official stenographer of the court, giving the language of the judge, in his charge to the grand jury, by which the indictment was found. This plea was overruled. Defendant then filed an application for a change of venue from the county, on the ground of the prejudice of the inhabitants against him. This application was in due form, and was properly verified by his own affidavit. He also presented, in support of his application, the affidavit of Mrs. Sarah Earls, in which she stated that she had used diligent effort to procure the affidavits of two disinterested and credible citizens of the county, to support defendant's affidavit, and that she had applied to many citizens of the county to make such supporting affidavits; that all such persons said that they knew that such prejudice existed, and that defendants could not have a fair trial in the county, but they feared to make an affidavit to that effect, believing that they would be in danger of personal violence from the citizens of the county if they did so. Defendants also filed, in further support of the application, a motion asking the court to grant the change without such supporting affidavit, because the facts alleged as ground of the application were within the knowledge of the court, and the court should take judicial notice that the deceased was the sheriff of the county, and of the act of the governor of the state in calling out the militia to protect the defendants from the violence of the people. This application the court overruled. In course of time the defendants made an application for a continuance of the case to the next term, on the ground of the absence of certain witnesses alleged to be material. A continuance was denied.

Defendant Turlington was tried separately. On the trial evidence was introduced, without objection, that defendant, under the name of W. E. West, was, at the date of the homicide, confined in the jail of Cooper county, under a conviction and warrant of commitment for the commission of a misdemeanor;...

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