State v. Evans

• Decision Date: 05 November 1894
• Parties: The State v. Evans, Appellant
• Court: Missouri Supreme Court

28 S.W. 8

124 Mo. 397

The State v. Evans, Appellant

Supreme Court of Missouri, Second Division

November 5, 1894

Appeal from Cooper Circuit Court. -- Hon. D. W. Shackleford, Judge.

Reversed and remanded.

Draffen & Williams and John Cosgrove for appellant.

(1) The statements of deceased and his wife were not competent as dying declarations. State v. Simon, 50 Mo. 370; State v. Johnson, 118 Mo. 491; Matherly v Com., 19 S.W. 977. (2) The defendant ought to have been permitted to prove that a few days before the shooting he had caused the deceased to be arrested for the purpose of binding him to keep the peace toward defendant. The latter had appealed to the law for protection and deceased uttered bitter threats because he had done so. (3) The courts fifth instruction should not have been given. State v McKinzie, 102 Mo. 620. (4) The court erred in giving the eighth instruction. The mere fact that defendant expected deceased to assault him, when he went to the place where the deceased was, and that he armed himself in expectation thereof, would not deprive him of the right to defend himself against an assault, if made. The instruction does not contain the necessary qualifications. State v. Partlow, 90 Mo. 608; State v. Lewis, 118 Mo. 79; State v. Rider, 90 Mo. 55; Cartwright v. State, 14 Texas, App. 486; Kerr on Homicide p. 202. The court erred in failing to instruct as to manslaughter. The evidence justified such an instruction. This point was made in the motion for new trial. State v. Palmer, 88 Mo. 568. (5) The first paragraph of the ninth instruction given by the court is erroneous. It limits the threats made by the deceased, whether communicated to defendant or not, to the sole question of who made the first assault. (6) Instructions numbers 1 and 2 asked by defendant and refused by the court should have been given. State v. Jones, 78 Mo. 278; State v. Hicks, 92 Mo. 431. (7) The court erred in refusing instruction number 3 asked by the defendant. The testimony of defendant justified it; and he was entitled to have an instruction based upon his own testimony given to the jury. State v. Partlow, 90 Mo. 626. (8) The prosecution proved that the defendant armed himself. His conduct in procuring a pistol after deceased had repeatedly threatened him, was made a prominent feature of the case throughout the trial. Defendant was cross-examined about it quite lengthily by counsel for the state. The court should have instructed that under the circumstances existing before the killing, defendant had a right to arm himself. State v. Harrod, 102 Mo. 590; 2 R. S. 1889, sec. 3503. (9) The sixth instruction prayed by defendant, and refused by the court should have been given. Kemp v. State, 13 Tex.App. 561-565. (10) It was error for the court to refuse instruction 6 prayed by defendant. There was evidence upon which to base it and the same should have been given. (11) The remarks of the attorney of the state in the closing speech to the jury, that "it devolved upon the defendant to prove that the deceased had a pistol," were improper. The remarks were objected to at the time by defendant's counsel, but the court, in the presence of the jury overruled the objection.

R. F. Walker, Attorney General, and Morton Jourdan, Assistant Attorney General, for the state.

(1) The prerequisites for the admission of the dying declarations existed beyond any question, that is, the fact that the deceased was at the point of death, and that he entertained a well-founded belief and conviction of immediate or impending dissolution; that he was about to die and could at best only live a few moments. The declarations were, therefore, admissible. State v. Wilson, 26 S.W. 357; State v. Nocton, 121 Mo. 537; State v. Johnson, 118 Mo. 491; State v. Welsor, 117 Mo. 570; State v. Umble, 115 Mo. 452; State v. Elkins, 101 Mo. 350; State v. Nelson, 101 Mo. 468; State v. Stephens, 96 Mo. 638; State v. Wensell, 98 Mo. 139; State v. Rider, 90 Mo. 54; State v. Mathes, 90 Mo. 571; State v. Chambers, 87 Mo. 408. (2) The court committed no error in the matter of the instructions. (3) Nor did the court commit error in permitting the state's counsel to say to the jury that the defense had failed to establish that the deceased had a pistol and that it was the duty of the defendant to prove that fact. State v. Jackson, 95 Mo. 623; State v. Anderson, 89 Mo. 312; State v. Young, 105 Mo. 634. (4) The weight of the evidence was a matter for the consideration of the jury as the triers of the fact. State v. Young (Mo.), 24 S.W. 1038; State v. Richardson, 117 Mo. 586; State v. Herrman, 117 Mo. 629; State v. Banks, 118 Mo. 117; State v. Moxley, 115 Mo. 644; State v. Burd, 115 Mo. 405; State v. Jackson, 106 Mo. 181; State v. Orrick, 106 Mo. 111; State v. Howell, 100 Mo. 628; State v. Lowe, 93 Mo. 547; State v. Hicks, 92 Mo. 432.

OPINION

Sherwood, J.

This appeal questions the correctness of certain rulings made by the lower court during the trial of Riley Evans on a charge of murder in the first degree, which trial resulted in his conviction of the second degree of that crime and the assessment of his punishment at imprisonment in the penitentiary for the term of twenty-five years.

On the trial it was developed by the evidence that Peter Fine, the deceased, rented a farm owned by defendant's wife; both defendant and deceased and their families living on the farm and occupying portions of the same dwelling house. The term of Fine had about expired, and he had been informed by defendant that he wanted possession of the farm on the expiration of the year for which it was rented to him. This announcement displeased Fine and gave rise to altercations between the parties and threats on the part of Fine towards defendant, so much so, that several days before the homicide occurred, defendant felt it to be necessary to take steps and secure the arrest of Fine in order to have him bound over to keep the peace. His arrest greatly enraged Fine, and he made threats of taking defendant's life unless he got off the place, etc.; these threats, some of them, extending even down to the morning of the day on which Fine was shot, the twenty-fifth of October. On the morning of that day having been freshly threatened, defendant for his own protection, deemed it necessary to procure a pistol, which he did by riding to Boonville for that purpose, and having loaded the weapon, returned home with it in his pocket, reaching there about noon. After putting his horse up in the stable he went to his house, and after some talk with his wife about domestic affairs, went down for some corn into the cornfield where the tragedy which forms the subject of the present prosecution, occurred.

Adeline Fine, sister of Peter Fine, stated that, hearing a niece of hers, Mary Fine, halloo, "Evans has shot papa," she went out of the house down into the cornfield, and there found her brother lying down in a drawn-up position by a fence some fifty yards from the house, she being the first one to arrive on the ground. She relates the conversation that occurred between herself and brother in this way: "I said, 'how is this?' and he says 'I am shot to death;' and I said 'you and Evans had a fuss?' and he says 'no, we have had no fuss;' and I said to him 'had we better have a doctor?' and he said 'send for Dr. Cockran.'" Being asked what else her brother said in reference to the shooting, she said: "Well, he just said he was shot to death and that 'I can't live' and that there was no trouble at all. I asked him if there was any fuss and he said nothing but kind words; he said Evans came up to him and they spoke something about the weather." She further stated that the shooting happened about 1 o'clock, and that her brother lived after being shot about one hour; that just before the shooting, some fifteen or twenty minutes, she saw defendant pass the door and go to the well and get a bucket of water and return to the house; that the wife of deceased reached the fatal spot a few minutes after she did, and witness Broyles shortly after that; that they placed her brother on some quilts, and he died in the field where he lay when found.

Mrs. Fine, the widow of deceased, testified in substance that so soon as her daughter hallooed, as before stated, she started to go to her husband. When she reached him, which she did after her sister-in-law did, when being asked to state what her husband told her in reference to the shooting, she replied: "I said to him, 'Mr. Fine, tell me all about it.' He says, 'there is nothing to tell; nothing but kind words spoken; he spoke about the weather; I turned and he shot me; I hallooed for you, and you didn't hear, and I started to the house, and that is all there is to tell.'" She further stated that her husband lived some three-quarters of an hour after this conversation, and that he died there on the ground.

Broyles, who lived not quite a half mile from the scene of the killing, testified in substance that he arrived at the locality some fifteen or twenty minutes after the shooting, saw Fine lying down on the ground on some quilts which had been prepared for him, where he died; that he made no statement about the shooting after he arrived; that some one else asked Fine where the shooting took place, when the latter, being feeble and just able to speak, pointed down in the field west of where he was lying. This witness then speaks of going down into the field with others, and seeing tracks pointed towards a sack where Fine, it seems, had been gathering corn at the time of being shot, there were a few ears of corn in the sacks, and there was the mark of a bullet on a cornstalk.

Street testified: that he was constable of Saline township, Cooper county; that he saw defendant at B. F. Bedwell's, ...