The State v. Garrison
| Citation | 49 S.W. 508,147 Mo. 548 |
| Parties | The State v. Garrison, Appellant |
| Decision Date | 07 February 1899 |
| Court | United States State Supreme Court of Missouri |
Appeal from Platte Circuit Court. -- Hon. William S. Herndon, Judge.
Reversed and remanded.
Roney & Chinn for appellant.
(1) The court erred in admitting and refusing to strike out the testimony of witnesses Whiteley and Dunagan, "That the place where the shooting occurred was within Platte county." That was a fact for the jury to find. (2) The court erred in admitting, over objections of defendant, the dying declarations, because no proper ground was laid, and because they were incompetent, irrelevant and fragmentary. (3) The court erred in admitting and in refusing to strike out the testimony of Sheriff Dillingham, "that defendant escaped from the jail of Platte county in September 1897." Defendant had admitted the shooting from the moment thereof. (4) The indictment charged that defendant feloniously assaulted deceased. That fact was not submitted to the jury in any instruction. This was error. (5) Instruction 1 deprived defendant of the right of acquittal upon a doubt that might arise from the want of, or the insufficiency of, the evidence to warrant conviction. State v. Blue, 136 Mo. 44. (6) Instruction 3 is in such form as to be unintelligible, especially in defining "deliberation." There is no proper connection of the words, "passion suddenly aroused" and "just cause or provocation." State v Petit, 119 Mo. 415; State v. Fairlamb, 121 Mo 146; State v. Bell, 136 Mo. 120. The jury were not informed what would constitute "just cause or provocation" to justify or to mitigate the shooting. It is a question of law. State v. Jones, 20 Mo. 64. (7) Instruction 4 is erroneous, because it fails to inform the jury what expressions, epithets or acts of deceased would be a legal provocation sufficient to justify or to mitigate the shooting. State v. Jones, 20 Mo. 64; State v. Hickam, 95 Mo. 329. (8) The court erred in refusing the request of defendant to give instructions upon murder in the second degree, and upon manslaughter in the fourth degree, as appears by the bill of exceptions. State v. Wilson, 85 Mo. 141; State v. Bulling, 105 Mo. 221.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
(1) The dying declarations of the deceased were shown to be both competent and proper before they were offered. 1 McClain's Crim. Law, sec. 425; 1 Bishop's Crim. Pro., sec. 1207; 1 Greenl. on Ev., sec. 156; Mattox v. U.S. 146 U.S. 140; Com. v. Roberts, 108 Mass, 296; Com. v. Sullivan, 93 Pa. St. 284; People v. Knapp, 26 Mich. 112; State v. Pulliam, 88 Ala. 1; State v. Johnson, 118 Mo. 491. (2) No error was committed or wrong inflicted upon the defendant by the refusal of the court to strike out the testimony of Whiteley and Dunnegan to the effect that the offense was committed within the county of Platte. Matters of county boundary are such as the court will take judicial notice of. The witnesses having shown that they were well acquainted with the country, had a right to testify as to their knowledge of matters affecting the boundary of the State at the date of the offense. (3) Objection is also made to instructing the jury upon the question of flight and the reason for defendant's objection is that he admitted having killed the deceased, but did it in self-defense, and for that reason defendant should not be called upon to explain his flight. The fact of his admission does not exempt him from being responsible for the presumption created in law, that he was guilty of the charge preferred against him in the indictment. (4) As to the instructions offered by defendant, it will be noticed upon a comparison that the points offered were fully instructed upon by the court upon its own motion, except upon the question of murder in the second degree, and upon this proposition we submit that the evidence discloses nothing upon which to warrant an instruction of that character.
At the December term, 1897, of the circuit court of Platte county, defendant was convicted of murder in the first degree, for having theretofore, in December, 1896, at said county shot to death with a pistol one Frank Allrick.
After unsuccessful motions for new trial and in arrest, defendant appeals.
At the time of the homicide the deceased Frank Allrick lived on an island in the Missouri river. Prior to that time he and defendant had been working on a dyke in the river bottom for one Shillings under the direction and supervision of one Albert Arnold. Some time before the homicide defendant had purchased a horse from deceased, for which he agreed to pay him $ 10 in work. He paid off this debt with the exception of $ 1.75, when deceased discharged him, over which they had a quarrel.
On the morning of the difficulty, December 17, 1896, but before the homicide was committed, deceased and defendant engaged in a reencounter in which they exchanged shots, but neither of them was injured. Arnold then discharged defendant and paid him off, after which he asked Arnold if he could not return to work provided he and Allrick made it all right with each other. Arnold acceded to this proposal, and that evening defendant called upon Allrick and renewed friendship with him. It was then agreed between them that Arnold should pay deceased the $ 1.75 out of defendant's wages as soon as earned.
After this arrangement was made Allrick invited defendant to accompany him home, which he did, and on arriving at the house Allrick secured a hatchet and was in the act of nailing a board on his house when, the evidence upon the part of the State showed, defendant without any warning took a revolver from his pocket and fired at him. That when the first shot was fired, Allrick turned to run, and defendant then fired another shot which penetrated the left side of the abdomen of Allrick just above the hip bone, and passed through the intestines to the right side of the body, from the effects of which he died at Leavenworth, Kansas, within two or three days next thereafter.
Defendant testified in his own behalf as follows: After I had gone with deceased to his house and started away, deceased asked me where I was going and I told him I was going back to Mrs. Butler's, and then Allrick said, go back and stay all night with me and you won't have to pay that board. I then said I don't propose to pay much board, I said I will go, and he said, "You damned son-of-a-bitch, I am going to chop your brains out with this hatchet," and he started at me with the hatchet, I ran back a little piece, I put my hand in the pocket I had the pistol, and fired one shot before I got it out, I don't know if it went off before I pulled it out or about the time, and after I got it raised I fired another shot and he took towards Mr. Arnold's house. He throwed the hatchet at me and I shot about the time it left his hand.
The homicide was committed near the State line between Missouri and Kansas, and there was some question as to which State it was committed in.
The court instructed for murder in the first degree and for self-defense, and refused instructions asked by defendant for murder in the second degree, and manslaughter in the fourth degree.
Counsel for defendant raise and discuss a great many points in their brief but only those which seem to us to be meritorious will be considered.
1. The first assignment of error is that the court erred in admitting and in refusing to strike out the testimony of witnesses for the State, Whiteley and Dunagan, that the place where the shooting was done was within Platte county. This testimony was admitted without objection from defendant, although he afterwards moved to strike it out. The motion was, however, overruled. But even if the objection had been timely made the evidence was not of sufficient importance to justify a reversal of the judgment upon that ground, even though error was committed in admitting it, which we are unwilling to concede. It is a common practice for prosecuting attorneys to ask witnesses for the State in what county the offense being investigated was committed, and certainly no reversible error is committed in so doing. It would be impracticable to proceed otherwise. Beside the defendant had the right to cross-examine the witnesses with respect to such statements had he desired to do so, and in that way ascertain the grounds upon which the statements were made.
2. On the nineteenth day of December, 1896, deceased made a dying declaration that was reduced to writing and signed by him, in which he stated that he had no hope of recovery, that Frank Garrison shot him with a pistol about five o'clock, p. m., on Thursday, the seventeenth of December, close to his shanty on Stigers island. That he nailed a piece of board on his shanty, and he (Garrison) said to him, "You will not stay here to-night," to which he said, "Why?" and defendant replied, "I will kill you," and shot him in the side and ran. That (Garrison) shot four times at him. He also stated that he did not offer or threaten to do anything to Garrison just before or at the time of the shooting; that he made no threats against him, nor did he go towards him or offer to hit him with the hatchet.
When the dying declaration was offered in evidence defendant objected upon the ground that no proper ground was laid for its admission, and because incompetent, irrelevant and fragmentary, which objections were overruled. It is now insisted by him that error was committed in admitting it in evidence over his objections.
The dying declaration was not only made by deceased under a sense of the actual nearness of death, but there was an absolute...
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