State v. Rider

• Decision Date: 04 June 1888
• Citation: 95 Mo. 474,8 S.W. 723
• Parties: STATE v. RIDER.
• Court: Missouri Supreme Court

8 S.W. 723

95 Mo. 474

STATE v. RIDER.

Supreme Court of Missouri.

June 4, 1888.

1. HOMICIDE — EVIDENCE — OBTAINING WEAPON BY ROBBERY.

Upon trial for murder, evidence that defendant, within half an hour of the time of the homicide, and within a short distance from the place thereof, aimed his gun at a third person, and compelled him to give defendant his pistol, is admissible as tending

to show deliberation and premeditation on the part of defendant in arming himself for the encounter with deceased, and as a connecting part of the entire transaction.

2. SAME — RELEVANCY.

Where defendant, on trial for murder, contended that deceased assaulted him, evidence that deceased told a witness that he had had sexual intercourse with defendant's wife did not tend to prove that such assault was made, and was properly refused.

3. SAME — RES GESTÆ.

The declarations of defendant on trial for murder, made to a witness a few minutes after the homicide, and after defendant had gone two or three hundred yards from the scene thereof, are not part of the res gestæ, and are not admissible in evidence.¹

4. SAME — INSTRUCTIONS — SELF-DEFENSE.

In a trial for murder, an instruction that if defendant, arming himself, went in search of deceased, with the intention of killing him, and, finding him, did willfully, deliberately, premeditatedly, and of his malice aforethought so kill him, and at the time deceased was not threatening or attempting to assault defendant, then there is no self-defense, and the jury should convict, is not erroneous.

5. SAME.

In a trial for murder, an instruction that previous threats alone, unaccompanied by any hostile demonstration at the time of the homicide, would not justify the killing, and which contains nothing that could be fairly construed to intimate that such threats might not be considered for any other legitimate purpose, is not erroneous.²

6. SAME — DEGREES OF HOMICIDE.

Where the evidence shows that defendant either deliberately shot deceased for revenge, or shot him in self-defense, there is no error in not giving the jury instructions defining any lower grade of homicide than murder in the first degree.

7. SAME — REPETITION.

Requested instructions, fully covered by other instructions given in unobjectionable phraseology, will be refused.

8. CRIMINAL LAW — CHANGE OF VENUE — DISCRETION OF COURT.

The action of the trial court on an application for change of venue in a prosecution for murder will be held to be conclusive, in the absence of palpable abuse of judicial discretion prejudicial to defendant.

9. WITNESS — CREDIBILITY — REPUTATION.

Where defendant in a criminal case testifies in his own behalf, evidence of his general reputation for truth and veracity, chastity and morality, may be introduced by the state.

Appeal from Saline criminal court; JOHN E. RYLAND, Judge.

Defendant was found guilty of murder in the first degree. The second instruction requested by him was as follows: "The court instructs the jury that if they believe from the evidence that defendant ascertained that his wife had left his home, and he believed that the deceased, R. P. Tallent, had accompanied her, then the defendant had the right to go in search of her, and to carry with him a loaded shot-gun. And the jury are further instructed that the defendant had the right to inquire of deceased, Tallent, as to the whereabouts of defendant's wife, and if the jury believe from the evidence that defendant did make such inquiry of deceased, and that the deceased raised an axe in his hands in an attitude to strike, and in a threatening manner towards the defendant, and that the defendant apprehended, and had reasonable cause to apprehend, that the deceased designed to kill him, or do him some great bodily harm, and that defendant had reasonable cause to believe, and did believe, that there was immediate danger of such design being accomplished, and that the defendant shot the deceased for the purpose of preventing such design from being accomplished, then the verdict must be not guilty."

Boyd & Sebree and Davis & Wingfield, for appellant. The Attorney General and A. F. Rector, for the State.

BRACE, J.

On the 23d day of July, 1883, the defendant and one Rousey P. Tallent were living in the same neighborhood, in the Miami bottom of the Missouri river, in Saline county, about six miles from the town of Miami. Both went to the town of Miami in the morning of that day; Tallent returning home about noon, and Rider, the defendant, about 4 o'clock in the afternoon. During their absence, a woman who is sometimes called Mrs. Moore, and sometimes Mrs. Rider, in the record, who was examined as a witness by the state without objection, but whom Rider claimed to be his wife, and with whom he had been living as such for three years previous, and by whom he had a child, then about two years old, left Rider's house with her child, and went to Tallent's. After Tallent ate his dinner, he rode to the river, procured a skiff, was met at the bank of the river by his wife, this woman, and another neighbor lady, and he took Mrs. Rider in the skiff across the river, leaving her on the other side. About an hour before sundown, he started to recross the river; and returning to his home a little after dark, in a path leading to his house, he was met by the defendant within a few steps of his door, by whom he was shot and killed. Rider, upon returning to his home, found his wife gone, and thereupon commenced making inquiries for her of his neighbors; satisfied himself that she had gone to Tallent's; that Tallent had gone away from home that afternoon; that she had been taken across the river; and that Tallent was the man who had taken her off. The evidence for the state tended to prove that thereafter he armed himself with a double-barreled shotgun; afterwards procured a revolver; and about dusk proceeded towards Tallent's home for the purpose of killing him. The evidence for the defendant tended to prove that after he got the shotgun, at the house of his brother-in-law, Mr. Cockrill, he went in search of his wife, going first to the home of a Mr. Merrill, who lives but a short distance from Tallent's; and he, in his evidence upon the stand, gives the following account of what transpired after he got the gun: "I got me a shotgun there, and came on back; passed Mr. Bristoe's, and went down to Mr. Merrill's; and me and Mr. Merrill went to this path, leading from the river to Mr. Tallent's. When we came to that path, which ran north and south, Mr. Merrill stopped, and I went on in the direction of Mr. Tallent's home, and went to the south part of his house, and looked to see if I could learn anything about where my wife was. I discovered no sign of her there; and I started back north on this path, leading towards the river, that I had come up; and, going down the slough bank, I met Mr. Tallent. I spoke to Mr. Tallent, and asked him if he knew where my wife was, and he made this remark: that `I have taken her where you won't find her; and, God damn you, we might as well settle this right here.' He started at me with his axe, in a striking posish, and he advanced a few feet, and I fired. I fired one time. * * * Well, after that, I started east towards Mr. Cockrill's house. I met Mr. Merrill; came across him near at his house. I reckon it was some two or three minutes after the shot; * * * some two hundred yards, may be, from Merrill's house; I am not certain of the distance; could not tell you." At the September term, 1885, of the criminal court of Saline county, the defendant was indicted for the homicide, and in November was tried, found guilty of murder in the first degree, and was sentenced to be hanged. He appealed to this court, and at the October term thereof the judgment was reversed, and the cause remanded. 90 Mo. 54, 1 S. W. Rep. 825. At the March term, 1887, of the criminal court, defendant's application for a change of venue on account of the prejudice of the inhabitants of Saline county was overruled; and in January, 1888, he was again tried in that court, and again found guilty of murder in the first degree; and from the judgment and sentence then rendered, after an unsuccessful effort for a new trial and in arrest of judgment, he again appeals to this court, assigning various errors, that will be noticed in their order.

1. On the application for a change of venue the weight of the evidence was that the defendant could have a fair trial in Saline county; nor is the action of the court in overruling the application urged here as error. On that issue, in cases even where the evidence is conflicting, the action of the trial court will be held to be conclusive unless there has been a palpable abuse of judicial discretion, to the prejudice of the defendant. State v. Hunt, 91 Mo. 490, 3 S. W. Rep. 858, and cases cited.

2. It is urged that the court erred in failing to give the jury instructions defining any degree of homicide below murder in the first degree, and in giving instructions 2 and 3 as follows: "(2) The court instructs the jury that if they believe from the evidence that, prior to the killing of Tallent, the defendant, George M. Rider, prepared and armed himself with a gun, and went in search of and sought out Tallent, with the intention of killing him, or shooting him, or doing him great bodily harm, and that he found, overtook, or intercepted Tallent while the said Tallent was on his way home from the Missouri river, in the county of Saline and state of Missouri, and then and there did willfully, deliberately, premeditatedly, and of his malice aforethought, (as these terms are defined in the first instruction for the state,) shoot at and kill Tallent, and, at the time of said shooting, Tallent was not then making any threats of violence against defendant, and was not attempting to assault the defendant, and that defendant had no reasonable cause to apprehend immediate danger to his person from Tallent, then there is...