State v. Cooper

• Decision Date: 31 October 1884
• Citation: 83 Mo. 698
• Parties: THE STATE v. COOPER, Appellant.
• Court: Missouri Supreme Court

83 Mo. 698

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 witness, that such statements were made, can proof of them be offered.” Whar. on Cr. Ev., § 483, p. 393 (8 Ed.); Taylor on Ev., § 1445, p. 1215; Starkie on Ev., top p. 214 (9 Ed). It was not error to refuse to allow Isaac Grimes to be contradicted by showing expressions of ill-feeling against defendant. The question was about a matter collateral to the issue on trial, and the defendant was bound by the answer of the witness, 1 Whar. Ev., § 559, p. 535. But, if the witness had been contradicted, it would only have shown his feeling in the matter, and no intelligent juror would have doubted that the father was prejudiced against the slayer of his son. If error, it was not such as demands a reversal of the case. It was competent to show in the rebuttal that the pistol deceased had at the time of the difficulty had but two loads in it. It tended to disprove the theory of the defence that deceased fired two or three shots before defendant shot him. The court properly instructed the jury to disregard the testimony of the witness, Rice, as to the statement of John Grimes, that “there would be hell raised over this yet.” It was not the language of the deceased, William Grimes, and was properly withdrawn from the consideration of the jury.

NORTON, J.

At the February term, 1879, of the Newton county circuit court defendant was indicted for murder in the first degree for killing one William Grimes on the 4th of November, 1878. At the August term, 1879, of said court, he was tried and convicted of murder in the second degree, and on his appeal to this court from that judgment, it was reversed and the cause remanded. The case is reported in 71 Mo. 436. At the February term, 1881, of said court, defendant was again put upon trial for murder in the second degree and found guilty, and his punishment assessed at ten years' imprisonment in the penitentiary, from which judgment he again appeals to this court. On the retrial of the cause the facts disclosed by the evidence substantially agree with the statement made of them in the opinion delivered when the case was here before and for that reason it is unnecessary to repeat them here. On the retrial of the cause the court, as is shown by the instructions given, tried it upon the theory indicated in the opinion, and we shall confine ourselves to such objections as were made during the progress of the trial.

Mrs. Grimes, the mother of deceased, who was the only person present when the homicide was committed, was examined as a witness, and on cross-examination counsel sought to impeach her by reading from her evidence as preserved in the bill of exceptions taken on the former trial. The court only allowed such part of the written evidence to be read as she denied having testified to on the former trial, and excluded such part of it as she admitted she had testified to on such trial. The action of the court in this respect is assigned for error, but we see no valid objection to it, inasmuch as the following authorities state the rule to be “that only upon denial, direct or qualified, by the witness, that such statements were made, can proof of them be offered.” Starkie on Ev., p. 214; Wharton Cr. Ev., sec. 483; Taylor on Ev., sec. 1445.

On the cross-examination of Isaac A. Grimes, a witness for the state, he was asked if he did not, at a certain time and place, say in the presence of one McCaslin: “If we cannot pen Cooper for killing my son, we will pen him for something else;” to which he answered that he did not. Defendant then called McCaslin and offered to prove by him that Grimes did make said statement. The court refused to...