State v. Elliot

• Decision Date: 20 December 1886
• Citation: 90 Mo. 350,2 S.W. 411
• Parties: STATE v. ELLIOT.
• Court: Missouri Supreme Court

2 S.W. 411

90 Mo. 350

STATE v. ELLIOT.

Supreme Court of Missouri.

December 20, 1886.

1. EVIDENCE — CONFESSION — MURDER.

On a prosecution for murder, admissions made by the accused, soon after the killing, that he did the killing, are competent evidence.¹

2. SAME — TESTIMONY AT PRELIMINARY EXAMINATION OF WITNESSES SINCE DECEASED.

Testimony, taken at the preliminary examination of one arrested for murder, of witnesses who have since died, is admissible on the trial.

3. HOMICIDE — MURDER — PROVOKING GESTURES NO EXCUSE.

An instruction that no gestures, however irritating or provoking, excuse the killing that results from striking with a deadly weapon, is correct.

4. WITNESS — CREDIBILITY OF ACCUSED AS WITNESS.

An instruction that the jury were not bound to believe all or any part of the testimony given by the defendant in his own behalf, but might disbelieve the same if the facts warranted it, is not erroneous, where the court has already charged the jury that the defendant was a competent witness, and that his testimony was to be weighed by the same rules that govern the testimony of other witnesses, and the evidence tends to discredit a part of his testimony.²

5. HOMICIDE — REFUSAL TO GIVE AN INSTRUCTION TO WHICH ACCUSED OBJECTS — MANSLAUGHTER.

The prosecution having asked for an instruction that if the jury believed, beyond a reasonable doubt, that defendant did, without the design to effect death, in the heat of passion, but in a cruel and unusual manner, kill the deceased, unless the same was done under such circumstances as to constitute justifiable or excusable homicide, they will find the defendant guilty of manslaughter in the second degree; and, on objection by defendant, the instruction having been refused, defendant cannot assign as error the failure of court to charge on the grades of manslaughter, when he does not show to what other grade of manslaughter than that of the refused instruction the evidence will apply.

Appeal from circuit court, Dallas county.

Indictment for murder.

The Attorney General, for the State. Underwood & Upton, for appellant, Elliot.

NORTON, J.

The defendant was indicted in April, 1881, in the circuit court of Polk county, for murder in the first degree, for killing one George Steele on the seventeenth day of June, 1880. The cause was subsequently removed by change of venue to the Dallas county circuit court, where a trial was had, resulting in a verdict of murder in the second degree, and the assessment of defendant's punishment at 10 years' imprisonment in the penitentiary. A reversal of the judgment is sought because of alleged errors committed by the court in the reception of evidence, and in giving and refusing instructions.

At the trial the court, over the objection of defendant, allowed Mrs. Charteen and Sarah Steele to detail conversations had with the defendant soon after the killing of deceased. The object of this evidence was to establish that in these conversations defendant admitted that he killed the deceased, and it is shown by them that defendant, though repeatedly charged with killing the deceased, did not deny the fact. The admission of the evidence is fully justified by the following authorities: State v. Miller, 49 Mo. 505; Whart. Crim. Ev. (8th Ed.) § 631; Roscoe, Crim. Ev. (7th Ed.) 53, 54.

It is next objected that the court erred in admitting the testimony of William Elliot and Anna Eidson, taken before the justice of the peace on the preliminary examination, the said witnesses having in the interim died. This evidence was admissible under the ruling of this court in the case of State v. McO'Blenis, 24 Mo. 402, which was subsequently followed in the cases of State v. Houser, 26 Mo. 431; State v. Harman, 27 Mo. 120; State v. Carlisle, 57 Mo. 105; State v. Able, 65 Mo. 357.

It is next objected that the eighth instruction given on behalf of the state is erroneous. It is as follows: "When a person strikes another with a deadly weapon, in a manner calculated or likely to produce death, no words of reproach, or gestures, however irritating or provoking, amount to or constitute any justification or excuse in law for the killing, if death results from such striking." A criticism is made upon the use of the word, "gestures" in the instruction. We cannot see that the use of this word, as applied to the facts in evidence, was in any manner calculated to mislead a jury of ordinary intelligence; and, besides this, it is in accord with what is ruled in the cases of State v. Brown, 64 Mo. 373, and State v. Starr, 38 Mo. 271. In the case last cited it is said: "When there is...