State v. Reed

Decision Date19 January 1897
Citation137 Mo. 125,38 S.W. 574
PartiesSTATE v. REED.
CourtMissouri Supreme Court

Appeal from circuit court, Platte county; W. W. Rucker, Judge.

Watson Reed was convicted of murder, and appeals. Affirmed.

T. J. Porter, E. J. Hall, John W. Beebe, and Witten & Hughes, for appellant. R. F. Walker, Atty. Gen., Morton Jourdon, Asst. Atty. Gen., F. M. Wilson, R. P. C. Wilson, M. B. Riley, and J. W. Coburn, for the State.

BURGESS, J.

At the August term, 1895, of the circuit court of Platte county, the defendant was indicted for murder in the first degree, for having at said county, on the 16th day of August, 1895, shot to death with a pistol one James Newton Winn. Judge Herndon, of the Platte circuit, on being disqualified to try the case, called Judge W. W. Rucker, of the Twelfth circuit, before whom the case was tried at the April term, 1896, of said circuit court, resulting in the conviction of defendant for murder in the second degree, and the fixing of his punishment at imprisonment in the penitentiary for the term of 99 years. Defendant appealed.

The homicide was committed in the courthouse at Platte City, while the circuit court was engaged in the trial of a case of replevin, involving the title and possession to some hogs, in which Winn, the deceased, was plaintiff, and the defendant herein was defendant. There had been bad blood existing between the parties for many months, and while Cross, one of defendant's attorneys, engaged in the trial of that case, was addressing the jury, he severely criticised Berry Winn, the son of deceased, who had testified in his father's behalf, and charged him with having been controlled and directed, while on the witness stand, by telegraphic communications from his father's eyes. Cross proceeded to remark, in substance: "I have raised five sons, whom I have endeavored to bring up to be honorable men, and not for all the wealth of both these litigants would I have one of them go on the witness stand, and make such a spectacle of himself as that made by young Berry Winn." About the time that Cross was concluding his criticism on the witness Winn, deceased, who was sitting near Cross, arose to his feet, and advanced towards him in an angry manner, placing his left hand violently on Cross' left shoulder, and at the same time striking at his head with his right. At the time of the assault upon Cross, defendant, who had been sitting 10 or 12 feet from Cross, and to his left, arose, drew his pistol, and fired three shots at deceased, two of them taking effect in the body, the first and fatal shot being fired almost simultaneously with the assault by deceased on Cross. When the first shot was fired, deceased released his hold on Cross, clasped his abdomen, and partially turned from defendant, in which position he was when the second and third shots were fired. Deceased died the night after the shooting, from the effects of the shots received by him.

1. The first point insisted upon by defendant for a reversal of the judgment is the action of the court in retaining upon the panel of 40 jurors, one W. J. Large, over the objection and exception of defendant. This juror was selected as one of the 12 qualified jurors before whom the trial was had. When questioned on his voir dire touching his qualifications as a juror, he stated that he had formed an opinion from rumor, and from reading newspaper accounts of the tragedy, as to the guilt or innocence of the defendant, which would require evidence to remove, and, if such rumor was not contradicted by evidence, that the opinion which he had formed therefrom would be bound to have some influence upon him in arriving at a verdict. He subsequently, and before being finally accepted on the panel of 40, was asked by the court if he could give the defendant a fair and impartial trial, as well as the state, and acquit him unless the evidence warranted a different verdict, which he, impliedly at least, answered in the affirmative. It is well settled in this state that a person otherwise qualified to sit as a juror in a criminal case is not disqualified by reason of having formed an opinion as to the guilt or innocence of the accused from reading partial newspaper accounts of the homicide, or from rumor, when he states on his voir dire that he can give the defendant under indictment for the offense a fair and impartial trial. State v. Taylor (Mo. Sup.) 35 S. W. 92. Moreover, the ground of objection to the juror was general, which was simply the statement of a legal conclusion, and really did not amount to an objection. We take the following from State v. Taylor, supra: "Now, nothing is better settled than that challenges for cause must be specifically stated. The particular cause must be set forth. People v. Reynolds, 16 Cal. 128; Mann v. Glover, 14 N. J. Law, 195; Powers v. Presgroves, 38 Miss. 227; Railroad Co. v. Rauh, 1 C. C. A. 416, 49 Fed. 696; Drake v. State (N. J. Sup.) 20 Atl. 747; 2 Elliott, Gen. Prac. § 530, and other cases there cited. * * * Indeed, there seems to be more cogent reason why specific objections should be urged in a case of this sort, where the question is as to the admission of a juryman, than where it is as to the admission of a piece of evidence. At any rate, in either case, fairness to the court and to an adverse counsel alike demands that the grounds of the challenge for cause be particularly set forth."

2. After all of the evidence in chief on the part of the state had been introduced, and the defense had concluded its evidence, the state was permitted to read in evidence, over the objection and exception of defendant, a part of the dying declaration of deceased, Winn, which is as follows: "At the time I was shot by Watson Reed, I was unarmed. I had no knife in my hand at the time, and made no demonstration with a knife or any other weapon. I was not watching or thinking about Wat Reed at the time he shot me. I did not see him shoot the first shot, but saw him shoot the second. I realize that my death is imminent, and near at hand, and I have no hope of recovery, and make this as my dying statement. J. N. Winn." The preliminary proof showed beyond any question that the declaration was made by the declarant, in the anticipation of immediate dissolution, and after all hope of recovery had vanished. In this particular every prerequisite required by law was complied with. The evidence was full, ample, and complete.

3. But it is insisted that the declaration was improperly admitted for other grounds, which were stated at the time it was offered in evidence, the first of which is that "there was no proof of the declarant's state of mind at the time he made the statement," and this was prerequisite to its admission. We have been cited to a single authority which seems to support such contention, — Tracy v. People, 97 Ill. 105; and that we think a departure from the generally accepted doctrine. We can conceive of no reason why such a condition should be imposed, and, if it may be done with respect to statements made by a deceased person, there is no apparent reason why the same rule should not apply to all witnesses introduced on the part of the state. That case, however, turned in a large measure upon the use of profane language by declarant at the time the dying declarations were made, which seems to have been construed by the court as showing that he was not at the time in the possession of his mental faculties. We do not think that decision in harmony with the law as generally laid down in the reports and text-books upon the subject. Should it appear from the evidence adduced when such declarations are offered in evidence that, at the time they were made, the declarant was not in the possession of his mental faculties, a different rule would prevail; but we are unwilling to say that, before such declarations can be received in evidence when otherwise admissible, it must be shown as a condition precedent that the declarant was in the possession of his mental faculties at the time he made them. The rule is that, "in a prosecution for murder, the offer of dying declarations should be preceded by evidence that they were actually made in expectation of impending death." 6 Am. & Eng. Enc. Law, 127. "The...

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