State v. Miller
| Decision Date | 28 November 1887 |
| Citation | 6 S.W. 57,93 Mo. 263 |
| Parties | The State v. Miller, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Criminal Court. -- Hon. Henry P. White, Judge.
Affirmed.
Sherry & Hughes and W. M. Burris for appellant.
(1) What Agnes Wartz said at the grocery-store and saloon, an hour before the difficulty, was incompetent. It was not a part of the res gestae. (2) The attempts of the prosecuting attorney to impeach the witness, Russell, by asking him concerning his arrest about some affair with the girl, and the people rocking him out of that part of the town, were improper and should not have been allowed. (3) The court erred in excluding the testimony of the witness, Grove, as to what Agnes Wartz said immediately preceding the difficulty. It was a part of the res gestae. (4) It was highly improper for the prosecuting attorney to ask the witness, Russell what sort of a house the defendant kept. (5) Defendant's attorney should have been allowed to cross-examine Agnes Wartz as to how she knew the difficulty occurred in Missouri. (6) The first instruction is defective in omitting to state that the cutting must have been done feloniously. Hart v State, 57 Ind. 102; Hunter v. State, 101 Ind 241; Bird v. State, 8 N.E. 14. An offence which is made a felony by statute must be charged to have been committed feloniously, whether it were felony at common law or not. State v. Jane, 3 Mo. 61; State v. Murdock, 9 Mo. 739; State v. Davis, 29 Mo. 391; State v. Deffenbacher, 51 Mo. 26. (7) The court erred in giving the fourth instruction. State v. Sanders, 76 Mo. 35. (8) The third instruction is erroneous in telling the jury to take into consideration "the reputation of the witness for morality." Only evidence of general character is admissible.
B. G. Boone, Attorney General, for the state.
(1) The indictment was drawn under Revised Statutes, section 1262, and is in the usual form. (2) No objections were made, or exceptions saved, to the admission or rejection of any evidence to justify a reversal, and the testimony will not be reviewed by this court. State v. McDonald, 85 Mo. 539; State v. Hicks, 92 Mo. 431. The instructions correctly put the case before the jury.
Defendant was indicted in the criminal court of Jackson county, Missouri, at the May term, 1886, for an assault with intent to kill one Agnes Wartz. No point is made upon the indictment, which is in the usual and due form and need not be further noticed. Upon the trial of the cause, the jury returned a verdict that they found defendant guilty as charged in the indictment, but that they could not agree as to the punishment, whereupon the court fixed the same at imprisonment in the penitentiary for a period of ten years. An extended and detailed statement of the facts and circumstances, as they appear in the record, will not be required. Defendant, who is a colored woman, and said Agnes Wartz, who is a German woman, resided, at the time of the difficulty, on adjoining premises on State Line Street, in Kansas City, Missouri, and not far from the line dividing the states of Missouri and Kansas. There had been ill feelings between them for some time, growing out of causes unnecessary now to notice, and on the evening of May 28, 1886, Agnes Wartz, the prosecuting witness, went over to a grocery-store across the line, in Kansas City, Kansas, for the purpose, as she testifies, of laying in supplies for breakfast next morning, and, as further appears, also for the purpose of having defendant arrested, upon charge of exposing her person and using vile and obscene language. A police officer, in Kansas City, Kansas, of whom she inquired about the arrest of defendant, told her to go back and get a Missouri policeman. She then started back, with a paper of eggs, which she had bought, and on her way home she met defendant, who assaulted her, cutting her severely one or more times with a razor or knife.
There is, perhaps, some conflict in the evidence as to the exact locality of the fight, and whether the same was in Missouri, or on, or just over, the line in Kansas; but, taken altogether, the evidence is pretty satisfactory that it was in this state. And further, under the instructions of the court, the jury were required to find that the assault was made at Jackson county, in the state of Missouri. Some points are made, in this court, as to the admission and exclusion of evidence at the trial. Remarks made by Agnes Wartz at the grocery-store, and testified to by her, and also by Joseph Meyers and Michael Sullivan, and not specifically or otherwise designated, were, it is claimed, no part of the res gestae, and incompetent. Again, the witness Russell, testifying in defendant's behalf, was interrogated by the prosecuting attorney concerning his arrest about some affair with a girl, and whether the people in that part of town did not want to rock him out of it. Again, error is claimed in the examination of witness Todhunter as to the reputation of witness Russell for morality, truth, and veracity; and, also, that the witness George Groves commenced to state what Agnes Wartz said immediately preceding the difficulty, and that her declarations then made were part of the res gestae, and improperly excluded.
And again it is said, that, although the court, of its own motion, interposed an objection, and refused to allow an examination as to what kind of a house defendant was keeping, the witness Russell was afterwards, during the course of his examination, interrogated about the girls stopping at defendant's house, and whether families in the neighborhood did not beg witness not to permit defendant to keep that house, etc. But counsel do not claim, in their brief, that they interposed any objections at the time in any of these instances, or that any exceptions were taken; and an examination of the record, which we have made, shows that, in none of these specified instances, was any objection made, or exceptions saved. As to such matters, therefore, there is nothing presented by the record calling for review. State v. Burnett, 81 Mo. 119; R. S., sec. 1921; State v. McDonald, 85 Mo. 539; State v. Brooks, 92 Mo. 542.
As already said, there was some controversy as to whether the assault and fight occurred in Missouri or Kansas, and claim is here made that the trial court erred in not permitting defendant's attorney to cross-examine Agnes Wartz as to how she knew it occurred in Missouri. Defendant further claims that this was especially erroneous and prejudicial, because she was the only witness testifying as to where it occurred. As to the latter statement, defendant's counsel labored under misapprehension. For example, the following occurs in the testimony of the witness Meyers: Q. "Do you know where the state line is?" A. "Yes, sir." Q. "Where is it?" A. "In the center of the [railroad] track." Q. "The German woman was on which side?" A. "On the Missouri side." Q. "Was she there when this woman cut her?" A. "Yes, sir." * * * Q. "Did this cutting take place in Jackson county, Missouri?" A. "I can't tell you, it was on the Missouri side of the track, but I don't know whether it was in Jackson county or not." Again, the evidence of officer Sullivan is to the effect that the fight occurred on the railroad track, which, at that point, he says, is on the Missouri side of the line, and that he telephoned for the Missouri policeman. There is other testimony in the record bearing upon the question, but this, we think, will suffice in this connection.
The claim that the court refused to permit defendant's attorney to cross-examine Agnes Wartz, the prosecuting witness, as to her knowledge of the locality of the difficulty, is on the refusal of the court to compel the witness to answer the question whether it happened on the side of the track on which the sun rises or sets. The witness, we may observe, was the first one put on the stand by the state. She was not able to speak English intelligibly or satisfactorily, and was testifying through the interpreter. Previous to the refusal of the court to require an answer to said question, the witness had stated, upon examination by the court, and after direction to the interpreter to give her the German word for east, that she was unable to distinguish as to these terms east and west, and the court being satisfied that further examination on this point was a waste of time, stopped the examination as to that matter, and we see no abuse of its discretion in that behalf.
It only remains to notice exceptions taken to the court's action in the matter of instructions, all of which were given by the court, of its own motion, none being asked either by the prosecuting officer, nor by the counsel for defendant. The first is criticized as defective, in that there was an omission to state that the cutting must have been done feloniously. The instruction defines the offence as follows: "To constitute the offence charged you must find and believe that the defendant, intending to kill witness, Agnes Wartz, assaulted her, the said Agnes Wartz with a razor or knife, the same being a deadly weapon, and you must also find that such assault was made with the intention, on the part of the defendant, on purpose, and of malice aforethought, to kill the said witness, Agnes Wartz." The instruction further correctly defines the technical expressions, "on purpose," "mali...
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