83 Mo. 698 (Mo. 1884), State v. Cooper

Citation:83 Mo. 698
Opinion Judge:NORTON, J.
Party Name:THE STATE v. COOPER, Appellant.
Attorney:George Hubbert for appellant. D. H. McIntyre, Attorney General, for the state.
Court:Supreme Court of Missouri
 
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Page 698

83 Mo. 698 (Mo. 1884)

THE STATE

v.

COOPER, Appellant.

Supreme Court of Missouri.

October Term, 1884

Appeal from Newton Circuit Court. --HON. M. G. MCGREGOR, Judge.

AFFIRMED.

George Hubbert for appellant.

(1) The exclusion by instruction numbered seven of part of the testimony of Rice from the consideration of the jury was palpable error. Previous threats, whether communicated or not, were relevant. State v. Alexander, 66 Mo. 161; State v. Evans, 65 Mo. 583; State v. Cooper, 71 Mo. 441. (2) The testimony offered to show the hostility of the witness, Isaac Grimes, to the defendant was improperly excluded. 1 Greenl. Ev., § 450. (3) The evidence of Thursday Grimes on a former trial, as preserved in the bill of exceptions, should have been admitted to impeach her. The proper foundation had been laid. (4) Instruction numbered ten should have been given as asked. Its change brought the bill of exceptions to the level of a deposition, while it was a record in the cause importing absolute verity. R. S., §§ 1921, 3639; Douglass v. Orr, 58 Mo. 577. (5) The court should have instructed for manslaughter, although not asked to do so. Matthew's Case, 20 Mo. 55; Stonum's Case, 62 Mo. 596. Cooper's testimony supports the theory of manslaughter in the third degree. R. S., § 1244. But if the killing was in passion, intentional and not necessary it was manslaughter in the fourth degree. R. S., § 1250; State v. Edwards, 70 Mo. 483; Wieners' Case, 66 Mo. 20; 2 Bish. Cr. L., § 723; State v. Robinson, 73 Mo. 309. (6) The judgment should have been arrested for want of an indictment against him for murder in the second degree and for want of an arraignment. R. S., § 1927; State v. Barnes, 59 Mo. 154; R. S., § 1845; Con. United States; Ray v. People, 14 Reporter 515; 1 Bish. Cr. Prac. (2 Ed.) § 728; 4 Black. Com. 322; Con. Mo.,art. 2, § 12.

D. H. McIntyre, Attorney General, for the state.

It was not error to refuse to allow defendant to read all of Mrs. Thursday Grimes' testimony on a former trial, as preserved in the bill of exceptions for the purpose of impeaching her. Upon cross-examination the witness did not deny testifying on the former trial as set out in the portion of the bill of exceptions excluded. Where she denied so testifying, the court permitted her to be contradicted by reading from the bill of exceptions. " Only upon denial, direct or qualified, by the...

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