State v. Parker

• Decision Date: 26 November 1888
• Citation: 96 Mo. 382,9 S.W. 728
• Parties: STATE v. PARKER.
• Court: Missouri Supreme Court

9 S.W. 728

96 Mo. 382

STATE v. PARKER.

Supreme Court of Missouri.

November 26, 1888.

1. CRIMINAL LAW — EVIDENCE — IRRELEVANT MATTER.

On a trial for murder, where the difficulty between defendant and deceased was as to a post which it was alleged defendant had so placed as to obstruct deceased's access to a private way, it is error to admit evidence that defendant had placed the post in the public highway, and had been notified by the road-officers to remove it, and had refused.

2. HOMICIDE — FORMER DIFFICULTIES OF ACCUSED.

Evidence that defendant, at an election some years before, drew a knife upon a witness in the present case, and that he had also been excluded from a certain church about eight years before, is not admissible.

3. SAME — DYING DECLARATIONS — EXPRESSION OF OPINION.

A dying declaration that defendant had "waylaid" deceased is not admissible; being an expression of opinion. But declarations as to the meeting of defendant and deceased, and their conversation as to the difficulty between them, and that defendant

said his son was not far off, and that they had come there to wait for deceased; that defendant called his son, who came running out of the brush with clubs and stones; and as to the struggle which ensued, — are properly admitted.¹

4. SAME — EXPRESSION OF OPINION.

The dying declarations showing that there was a lying in wait, the statement of a witness that on the evening after the homicide he was in the field opposite where it occurred, and the weeds looked as if they had been mashed down by some one resting on his knees and toes, is admissible in corroboration; and such evidence is not incompetent as being an expression of opinion.

5. SAME — SELF-DEFENSE.

The defendant may justify on the ground of self-defense, though he himself brought on the quarrel, provided that in so doing he was not actuated by a design to kill deceased, or to do him great bodily harm.² NORTON, C. J., dissenting.

6. CRIMINAL LAW — EVIDENCE OF CHARACTER.

Where defendant has lived in the county for 20 years, evidence as to his character before that time, while living in another state, is not admissible to impeach him as a witness.

7. SAME — OPINION OF MORAL CHARACTER.

An instruction, in such case, that "the character of a person in the neighborhood in which he lives, consists in the general opinion and estimation in which he is held by his neighbors, founded upon their opportunity to observe his conduct," should be limited to their opinion of his moral character; and a statement that he was regarded as "a stubborn, contentious man in politics, in church, and in his school-district," is properly excluded.

8. WITNESS — IMPEACHMENT — EVIDENCE.

Where it is sought to impeach the defendant as a witness, the state may introduce evidence of his general moral character, and not alone as to the trait of character involved in the offense.

9. SAME — EVIDENCE AT FORMER TRIAL.

Evidence as to what a witness testified on a former trial is not admissible to impeach him until he has been particularly inquired of as to such statements.³

10. JUDGE — REFUSAL OF SPECIAL JUDGE TO ACT — CHANGE OF VENUE.

Where the judge is disqualified, and two special judges have been elected, and have each refused to serve, the judge may refuse a change of venue, and call on the judge of some other circuit to try the case, as provided by Rev. St. Mo. § 1881.

Appeal from Buchanan criminal court; CYRUS A. ANTHONY, Special Judge.

Ramey & Brown, for appellant. B. G. Boone, Atty. Gen., for the State.

SHERWOOD, J.

The defendant, indicted for the murder of Davis C. Montgomery, was convicted of the offense of murder in the second degree, and he appeals here, alleging many errors. The history of the homicide, as disclosed by the record, whether favorable to the prosecution or favorable to the defense, is as follows: The deceased and the defendant, both farmers, lived on adjoining tracts of land in Center township, Buchanan county, Mo. A misunderstanding had arisen between them in regard to a post which it is said defendant had set in the public road, and connected it with a barbed wire to his line of fence, so as to render it inconvenient for Montgomery to reach his house by way of a private road leading into the public road. On Sunday, May 23, 1886, the deceased and the defendant met in the public road in front of defendant's farm, and about one-eighth of a mile from their respective houses. On meeting each other, they had some conversation in regard to the removal of the post, when an altercation arose between them, which resulted in Montgomery being shot by defendant and killed. When the wife and sons of Montgomery reached the scene of the homicide, he was found lying on the ground unable to rise. His face was cut, and he had a gunshot wound through one of his lungs. He said to his wife that he was bound to die; that he was not long for this world; that Gaines Parker and Frank Parker had waylaid him. After shaking hands with all, he said again he must die. "He then prayed God to forgive his sins, and have mercy on his wife and children, and enjoined his two older sons to be good boys, and take care of their mother and the little children. Continuing, in regard to the difficulty, he said that Gaines Parker, the defendant, had met him in the road, and said: `I see you are trying to get into trouble with me about that wire.' Deceased replied: `No, I am not. I don't want any trouble with you.' Parker then said: `You want the wire moved, do you?' to which deceased replied: `I don't think that it is any more than right that it should be moved, but I don't want any trouble with you. I am sorry that I ever had. I would not have had if you hadn't said that Joe [deceased's son] had no character.' The defendant then said to the deceased that Frank [defendant's son] was not far off, and `that we [defendant and son] are here watching for you.' Defendant then called his son, who came running out of the brush near by with a club and some stones, and he struck deceased on the head, stunning him and knocking him down; after which, while he was yet down, Frank, the son, kicked him in the face. Deceased said he would surrender, but defendant drew out a pistol and shot him, and turned and shot at a small boy, one of the sons of the deceased, who came up during the difficulty, and struck at defendant with a small steel trap which he carried in his hand. Deceased, having been shot through the lungs, spoke slowly, and with great difficulty, and a half hour or more was consumed by him in stating the above facts. His family insisted on taking him home, but he said he could not be moved; that he would have to die right there on the ground. He was put in a wagon, however, and hauled to his residence, about one-eighth of a mile distant, where he died at 12 o'clock M. of that day from the gunshot wound inflicted by defendant." The evidence on the part of the defendant was to the effect that upon the day of the difficulty he and deceased met in the public road, and entered into conversation, as before stated; that, upon defendant giving the deceased the lie in response to some charge the deceased made, the deceased knocked him down, and inflicted on him such serious personal injuries as to cause him to call on his son Frank, who was then at his father's house, half a quarter of a mile distant, to come to his assistance; that Frank's attention was called to the cries of his father for help by his mother, and that he immediately ran to the place of the difficulty, and when he got there he saw his father lying on his back in the fence corner, with blood running over his face and eyes, and that at that time the deceased, Montgomery, was on his father, with his knees planted on his breast, and striking him with his fist; that, when Frank requested deceased to get off of his father, he refused to do so, but insisted that Frank should not get over the fence, and, for the purpose of preventing him from getting over the fence, raised up off of the defendant, and pushed Frank from off the fence; that the defendant had been severely injured, and was then blinded by the gouging that deceased had given him, and by the blood that was running in his eyes; that when the deceased resisted the attempt of Frank to get over the fence and relieve his father, and refused to get off the defendant, Frank threw a rock which he had picked up on his way to the place of the difficulty, and hit the deceased on the back of the head, and then jumped over the fence, and kicked him in the face, which knocked him off of his father, and that the defendant then immediately shot; that, at about the time that Frank got to the place of the difficulty, Charles and Thomas Montgomery, two sons of the deceased, got there also; that Charles, the oldest one of the boys, had a steel trap in his hands, and had hold of the chain of said trap, and was striking and swinging it at the defendant, and that the deceased had hold of the defendant with one hand, and that deceased was striking or shoving at Frank with the other; and that this was the condition or...