The State v. Avery
| Decision Date | 31 January 1893 |
| Citation | 21 S.W. 193,113 Mo. 475 |
| Parties | The State v. Avery, Appellant |
| Court | Missouri Supreme Court |
Appeal from Barton Circuit Court.--Hon. D. P. Stratton, Judge.
Affirmed.
Cole & Ditty for appellant.
(1) The court erred in permitting a cross-examination of defendant concerning matters not referred to in his examination in chief, and when he had claimed his privilege under the law of not being compelled to testify against himself. Constitution art. 2, sec. 23; Revised Statutes, 1889, sec. 4218; State v. McGraw, 74 Mo. 573; State v. McLaughlin, 76 Mo. 321; State v. Turner, 76 Mo. 350; State v Patterson, 88 Mo. 88; State v. Bulla, 89 Mo 595; State v. Chamberlain, 89 Mo. 129; State v. West, 95 Mo. 143. (2) The law will not permit the utter disregard of its mandate prohibiting the separation of the jury in capital cases such as is shown in this case. State v. Collins, 81 Mo. 652; State v. Murry, 91 Mo. 100; State v. Witten, 100 Mo. 525; State v. Gray, 100 Mo. 523; Kelley v. State, 12 S.W. 505; McLean v. State, 8 Mo. 153. (3) A new trial should have been granted the defendant on the eighteenth ground of motion for a new trial. It was for the jury to say whether the defendant was a "red handed murderer," not the prosecuting attorney, and further, punishment provided by law is inflicted for violation of the law, not for public policy. State v Jackson, 95 Mo. 653; State v. Kring, 64 Mo. 591; 1 Thompson on Trials, secs. 965, 966. (4) When the state offered the affidavit of Jacob Beam, one of the jurors, in rebuttal, on the hearing of the motion for new trial, then the defendant had a right to put him on the stand and show the whole truth touching the matters referred to in his affidavit by cross-examination. 1 Thompson on Trials, sec. 405. (5) The instruction number 4, given at instance of the state, contains error. It assumes that there was evidence that James A. Miles "was shot and killed for the purpose of robbing him of his property." No such assumption is allowed. 2 Thompson on Trials, sec. 2290; State v. Bell, 70 Mo. 634. (6) Instruction number 5, given at instance of the state, is erroneous in this, that it does not require the "circumstances from which the jury may infer other connected facts," shall be established beyond a reasonable doubt, nor by a preponderance of the testimony, nor to any degree of conclusiveness. Under this instruction if any of these circumstances have been testified about then such circumstances become a basis for inferring other facts. 2 Thompson on Trials, sec. 2511. The instruction is a comment upon the evidence, and for that reason is erroneous. Revised Statutes, 1889, sec. 4220; State v. Hundley, 46 Mo. 421; State v. Smith, 53 Mo. 267; State v. Jones, 61 Mo. 232; State v. Elkins, 63 Mo. 159; 2 Thompson on Trials, sec. 2420. (7) Instruction number 7 is gross error. It is a bid for a verdict of murder in the first degree and contains the assurance that if the bid is accepted the jury will be entirely exonerated from responsibility as to the gravity of the results. (8) It was error to admit the papers, exhibits "K" and "L" purporting to show "proceedings" of a Kansas court. (9) The evidence of defendant justified an instruction submitting the question as to whether J. A. Miles committed self-murder, and was aided and abetted in the act by defendant. The instruction asked by the defendant should have been given, as requested. State v. Ludwig, 70 Mo. 432; 1 Revised Statutes, 1889, sec. 3566; State v. Douglass, 81 Mo 236; State v. Banks, 73 Mo. 592; State v. Tate, 12 Mo.App. 329; State v. Partlow, 90 Mo. 608.
R. F. Walker, Attorney General, and C. S. Essex, Prosecuting Attorney, for the State.
(1) Under the act of 1877, before amendment in 1879, a defendant testifying was subject to the same rules and tests as any other witness, and might be contradicted and impeached in the same manner as any other witness in the case. State v. Clinton, 67 Mo. 391; State v. Cox, 67 Mo. 392. Under the present law (Revised Statutes, 1889, sec. 4218) the rule is the same, except that the cross-examination is limited to matters "referred to" in direct examination, and he may still be "contradicted and impeached as any other witness in the case" by express terms of the statute. State v. Rider, 90 Mo. 54; People v. Mullings, 83 Cal. 138; State v. Walker, 98 Mo. 114; State v. West, 95 Mo. 139; State v. Young, 99 Mo. 681. (2) The alleged separation of the jurors took place before the trial was concluded and the state assumed the burden of showing by the counter-affidavits of the officers and jurors that the jury was not thereby subjected to any improper influence, and there is nothing to complain of. Thompson & Merriam on Juries, secs. 310, 318 (subdiv. 6), 319, 320, 321, 328; 1 Bishop on Criminal Procedure, secs. 994, 995; State v. Collins, 86 Mo. 245; State v. Washburn, 91 Mo. 571; State v. Rush, 95 Mo. 199; State v. Crawford, 99 Mo. 74; State v. Orrick, 106 Mo. 124; State v. Steifel, 106 Mo. 129; State v. Cucuel, 31 N. J. L. 249. (3) The remarks made by the prosecuting attorney do not constitute reversible error. State v. Forsythe, 89 Mo. 667; State v. Griffin, 87 Mo. 608. (4) A juror will not be permitted to impeach his own verdict either on direct or cross-examination, but may depose or testify in support of it. State v. Rush, 95 Mo. 205; State v. Branstetter, 65 Mo. 156; State v. Underwood, 57 Mo. 51; Thompson & Merriam on Juries, sec. 340, pp. 398-9. (5) The instructions properly declared the law. State v. Hopkirk, 84 Mo. 287; State v. Payton, 90 Mo. 227; State v. Anderson, 98 Mo. 473. (6) The certified copies of defendant's plea of guilty to the charge of burglary and larceny in the Kansas district court are not called for in the bill of exceptions, are not in the record, and hence not subject to review in this court. The presumption is that they were rightfully admitted. But if they were preserved, they are in due form and properly authenticated. Act of Congress, 2 Revised Statutes, 1889, sec. 905, p. 2168; 1 Revised Statutes, 1889, sec. 4881; Grover v. Grover, 30 Mo. 400. And the records and judicial proceedings were properly admitted for the purpose of impeachment, and the judgment of conviction was the only competent evidence. State v. Miller, 100 Mo. 622; State v. Howard, 102 Mo. 149; 1 Thompson on Trials, sec. 535, and note 6.
At the February term, 1892, of the circuit court of Barton county, the appellant, Amos Avery, was indicted for murder in the first degree, for the killing of one James A. Miles in said county on the twenty-second day of September, 1891. He was put upon his trial at the September term of said court and convicted of murder of the first degree. The indictment is in the usual form for murder in the first degree and no point is made on it in this court.
The evidence introduced by the state established the following facts:
About the seventeenth of August, 1891, James A. Miles, the young man alleged to have been murdered, together with J. B. Highfill and James Griffin, two other young men, left their homes in Prairie county, Arkansas to canvass overland for a photograph family album, published by Corry & Co., of Chicago. They were to work under one W. M. Lively, of Rosebud, Arkansas, who was the general agent of the company. Each had his separate outfit--a horse, cart, samples, instructions, etc. Young Miles was about twenty-one years of age, light, sandy complexion, blue eyes, medium size; his left hand had been mangled in a cotton-gin about two years previous--three fingers and thumb gone, a stub of the forefinger remaining, and balance of hand badly mangled, being useless; had never travelled from home much; was dressed in a light colored suit. The horse was a faded black, dark brown, or what some witnesses called sun-burnt black; about fifteen and one-half hands high; from five to nine years old; probable weight one thousand pounds; had kind of "racking" walk when started up, described as a "wiggler;" had a scar or blemish on outside of left hind leg, just below knee, running diagonally toward ankle joint, caused by falling through a bridge. The cart was a light red, one spring with seat resting on spring, slats where feet rest. The lower leaf of spring had been broken and replaced by a wider, heavier one. A letter "A" cut in seat under cushion. (The other property and physical evidence alleged to have belonged to deceased was not described for the reason that it was all produced in court, identified and introduced in evidence before the jury.)
The defendant was about twenty years of age, rather tall, very dark, swarthy complexion. Had lived at and around Fort Scott, Kansas, and had also worked in the mines at and around Baxter Springs and Galena, Kansas, and was pretty well known in that country.
The destination of the three young men referred to was Southwest Missouri, where they were to canvass in four counties--Bates Henry, Johnson and Cass. Their first stopping point was at Lone Oak, in the southeast portion of Bates county. Here they met with indifferent success at canvassing. Highfill and Griffin went to work on farms near Lone Oak. Miles, not being able to do farm work, owing to the loss of a hand, continued the work of canvassing until the latter part of September, still without success. On Monday, the twenty-first of September, 1891, at about noon, Miles left Highfill and Griffin at Lone Oak, going southwest, saying he was going by the way of the Indian Nation, and work his way back home, by picking cotton. He took with him his horse, cart and harness, his valise containing an extra suit of clothing, shirts, underclothing, etc., also a pistol, and the sample record framed--very little money--going in the direction of the old...
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