State v. Duncan

• Decision Date: 16 May 1893
• Citation: 116 Mo. 288,22 S.W. 699
• Parties: STATE v. DUNCAN.
• Court: Missouri Supreme Court

22 S.W. 699

116 Mo. 288

STATE v. DUNCAN.

Supreme Court of Missouri, Division No. 2.

May 16, 1893.

MURDER — INDICTMENT — EVIDENCE — MANSLAUGHTER — CONDUCT OF TRIAL — REVIEW ON APPEAL — RECORD.

1. Rev. St. 1889, § 643, authorizes the court to appoint an attorney to represent the prosecuting attorney in the latter's sickness or absence. Held, that the fact that another is permitted to represent the prosecuting attorney is tantamount to an appointment.

2. Objection cannot be taken to an indictment ore tenus.

3. Affidavits cannot be used instead of a bill of exceptions to preserve matters for review on appeal.

4. The preservation in the bill of exceptions of a mere statement of defendant's counsel is insufficient to prove that during the trial, and while testifying, defendant was attended by an armed guard.

5. The court may permit a dangerous and desperate man, charged with murder in the first degree, to be attended during the trial, and while testifying, by an armed guard.

6. And so of one indicted for murder in the first degree, and brought into court to testify in behalf of defendant.

7. Error in impaneling the jury should appear from the bill of exceptions, a recital in the motion for a new trial being insufficient to show it.

8. Objections made during a recess of court are not entitled to consideration.

9. On a trial for murder, defendant is not harmed by the exhibition of a revolver on the table of counsel before it has been called for.

10. On a prosecution for murder committed while resisting arrest, a remark of a bystander to an officer that "there is the man that did it" (i. e. committed the offense for which the arrest was being made) is part of the res gestae, and admissible in evidence.

11. A witness, having testified that he saw an act done, may be asked whether he has any doubt as to the commission of the act as he has described it, the question not calling for an opinion, but merely seeking to ascertain whether the witness is firm in his conviction of having seen the act done.

12. It is competent to show that defendant while in jail had saws in his shoes with which to make his escape in case of conviction.

13. Where a witness on cross-examination avoids replying, and parries a question by asking others, he may be pressed for an answer.

14. Where a witness on cross-examination evades a legitimate question, adverse counsel should not be permitted to interpose frivolous objections to rapid cross-examination, thereby affording the witness opportunity to fabricate replies.

15. On a prosecution for murder, evidence that a person other than defendant admitted doing some shooting at the time and place of the homicide is hearsay and inadmissible.

16. There was evidence that while an officer had defendant's brother under arrest for breach of the peace, defendant struck the officer a violent blow, and wrenched his pistol from him; that defendant, when requested by other officers to throw up his hands, fired at them, and ran behind the counter of a saloon and crouched under it; that decedent, another officer, after an exchange of shots between the officers and defendant, and after calling on defendant to surrender, leaned over the counter and shot at defendant, and that thereupon defendant sprang up, and shot and killed him. Held, that a verdict finding defendant guilty of murder in the first degree would not be disturbed.

17. Where defendant's theory is that he killed an officer while resisting an unlawful arrest, he is not entitled to an instruction as to manslaughter, but only to one as to self-defense.

Appeal from St. Louis circuit court; W. W. Edwards, Judge.

Harry Duncan was convicted of murder, and he appeals. Affirmed.

The other facts fully appear in the following statement by SHERWOOD, J.:

On change of venue to the circuit court of St. Louis county, the defendant, a negro, was convicted of having murdered James Brady, a policeman, in the city of St. Louis, by shooting him with a revolver. In conformity with the verdict the defendant was sentenced, judgment accordingly, and be appeals to this court. The homicide occurred October 6, 1890, in a saloon at 715 North Eleventh street, kept by Charles Stark, a negro, and mostly frequented by that race. On the evening in question, about 8:30 o'clock, a large crowd, principally negroes, was assembled on the sidewalk in front of the saloon, and by doing so obstructed the passage, not only of the sidewalk, but also of the street up to the car track. The crowd was gathered together, it seems, to witness a sparring going on between Luther Duncan, a brother of defendant, who kept a barber shop next to the saloon, and Bob Henderson, another negro barber. Complaint being made to Policeman Gaffney, who patrolled that beat, of the obstruction thus caused, he hastened to the spot. He was in full uniform, and well known to all the parties there. On his arrival he pushed his way through the crowd, and found the two negroes sparring, and the defendant standing beside them. As was his duty he ordered the crowd to disperse, and told the sparrers to desist; to move on, and open a way on the sidewalk for passers-by. Speaking to Luther Duncan, who worked in a barber shop close to the saloon, Gaffney said: "You know this will not do; go up there where you work, and get the crowd up." In response to this request, Duncan put up his fists, and shoved against the officer, who repeated his request, and said: "If you don't go away, I will have to take you away." Thereupon Luther Duncan replied: "You can go to hell; you can't take me away." When this remark was made, the crowd began closing in upon the speakers, and Gaffney laid his hand on Luther's arm, when the defendant struck Gaffney a violent blow in the face and eye. Then the Duncan brothers, assisted by others, set upon the officer; he was hustled through the crowd out into the street, receiving numerous kicks and blows, one of them in the stomach, a very painful blow, and finally his baton was wrested from him, and with this the Duncan brothers beat him over the head, and left him lying unconscious on the street. During this fierce assault there were cries in the crowd of; "Let's kill the son of a bitch while we're at it." Recovering consciousness, Gaffney rose to his feet, and drawing his revolver fired twice in the air, in order to attract the attention and secure the help of other officers in the vicinity. Just then Luther Duncan threw something at the officer, and fled into Stark's saloon. Gaffney followed him, but, being weak from the treatment he had received, he was unable to open the door; but finally some one opened the door for him, and he entered the saloon. Passing through the saloon he saw Luther in the billiard hall, which was a platform in the rear or west end of the room, some six or eight feet higher than the barroom floor, and reached by two short stairways on each side of the saloon, one on the north and the other on the south. Gaffney, with revolver presented, went up the north stairway, where Luther was standing, and, approaching him, said: "I want you." Upon this, Luther started to go with the officer, but when they had nearly reached the north stairway, for the purpose of descending, a cry was raised of "Don't shoot," and Gaffney, turning his head at the sound, received (from the defendant) a violent blow on the head. This blow was given with such force that it knocked Officer Gaffney's hat off, and sent him reeling and bleeding, with a great gash cut over his eye and on his head, down the north stairway. Luther then disappeared. On striking this blow, the defendant, who had not been seen by Gaffney, sprang forward, and, wrenching the revolver out of Gaffney's hand, went across the platform, and started, pistol in hand, to descend the south stairway. At this juncture, attracted by the shots fired on the outside by Gaffney, Police Officers Maloney and Conners, hastening from the adjoining beat, entered the saloon. As they did so, they saw Gaffney staggering down the north stairway, his hat off, and the blood streaming down his forehead and face, and he exclaimed to them that he was nearly killed. Just then Stark, the proprietor of the saloon, who was immediately behind the defendant, pointed him out, and cried: "Here is the man who did it." Maloney, who was in advance of Conners, and moving across the center of the saloon, called out to defendant: "Throw up your hands; you are my prisoner." Defendant threw up the hand in which he held the pistol, and retorting, "Yes, God damn you," fired two shots at Maloney and one at Conners, who was endeavoring to cut off defendant from darting behind the counter, which was on the south side of the saloon. When Maloney called on defendant to throw up his hands, neither he nor Conners had drawn their pistols. As defendant began firing at him, Maloney dropped to the floor, and then both he and Conners drew their pistols and began returning defendant's fire, who then managed to run behind the counter and crouch under it. Both officers then went up to the counter, and endeavored to cover the defendant with their weapons. The defendant occasionally sprang up from behind the counter, and shot at the officers, and they returned his fire, and defendant instantly crouched again behind the counter. About this time, Officer Brady, of that beat, in full uniform, came into the saloon to assist in arresting defendant. He approached the counter, and as he did so, and was alongside the other officers, defendant jumped up and fired at them; then Brady hallooed to defendant to "surrender." Defendant not doing this, Brady leaned over the counter, and fired one shot at defendant, who was crouching behind it with nothing but his legs and feet exposed. Defendant thereupon sprang up, suddenly, shot Brady, who fell over dead, and at the same time Maloney and Conners fired at defendant, and slightly wounded him in the side, and he immediately dropped again behind the...