Green v. State

• Decision Date: 31 March 1850
• Citation: 13 Mo. 382
• Parties: NOEL GREEN v. THE STATE OF MISSOURI.
• Court: Missouri Supreme Court

13 Mo. 382

NOEL GREEN

v.THE STATE OF MISSOURI.

Supreme Court of Missouri.

March Term, 1850.

APPEAL FROM CAPE GIRARDEAU CIRCUIT COURT.

ENGLISH, for Defendant. 1st. The court should have continued the case over for a few days, on the affidavit of the defendant, for evidence material to him in the defense. It was a question of sound discretion to be exercised for the promotion of justice, and in a spirit of mercy. The affidavit makes a sufficient case, and the decision of the court was oppressive in forcing the trial under the circumstances. 2nd. Malice must be proved; it cannot be presumed in the case of murder. Whatever of doubt there may have been, should have been construed favorably to the defendant. There was no evidence of malice. 1 Russ. on Cr. 422, (n); Coffee v. The State, 3 Yerger, 283. 3rd. Force may be repelled by force; and if death ensue, he that acts in the defense is justifiable. 1 Russ. on Cr. 549; 2 Stark. 523; Russ. on Cr. Ev. 638, 640; Ford's case, 4 Blacks. 180, 183; Mo. Stat. 344, §§ 4, 5, 6. 4th. To render a party guilty as principal, in the second degree, he must be present, aiding and abetting at the fact, or so near as to render assistance, if necessary. There was no proof to justify the finding in the case. 1 Russ. on Cr. 22, 28, 32, 398; 4 Blacks. 35; Russ. on Cr. Ev. 167; Commonwealth v. Gnat et al. 9 Pick. 496; 1 Russ. on Cr. 25; Rus. & Ry. 25, 113, 251, 332.

RYLAND, J.

This was an indictment, found by the grand jury of Wayne county, at the Circuit Court, at March term, in the year 1849, against Thomas Stuart, Noel Green, William Green, Alfred Green, and William Cobb, for the murder of George Marr. The defendants were arraigned and plead not guilty to said indictment, at the term aforesaid, and also filed their petition praying for a change of venue, which petition was allowed and the venue changed to the county of Cape Girardeau.

At the May term of the Circuit Court in and for the county of Cape Girardeau aforesaid, the circuit attorney moves the court to have the prisoners brought into court. Whereupon the defendant, Noel Green, is brought into court, and moves this court to continue this case to some day during the present term of the court, and files his affidavit in support of his motion, which affidavit is as follows to-wit: “Noel Green, the prisoner, makes oath that the testimony taken before the committing justice in this case in the county of Wayne, where this indictment was found is, material and important for him on the trial of this cause; he did not know until yesterday, that it was material or that it was not here, he is informed and believes it is in the possession of the jailor of said Wayne county, he, affiant, on yesterday sent an express for said testimony and believes he can procure it during the present term of this court, he knows of no testimony present by which he can prove the same facts, he expects to establish by said absent testimony; his object is not delay. The said testimony is not absent by his connivance or consent, he therefore asks for a postponement of this case for some other day during this term.

NOEL his X mark. GREEN.

This motion to postpone was overruled, and the defendant excepted to the opinion of the court. The case was tried, so far as Noel Green is concerned; he being tried separately. The following facts were given in evidence before the jury by the witnesses as named (viz.):

The testimony of Alexander S. McDonald. He was acquainted with George Marr; the last time he saw him alive, was on the 30th of January last; he was between twelve and fourteen years old; he does not know whether George could read or not, he was a boy of common intellect. At the time witness last saw him alive, he was lying at the foot of a tree, in the woods, stabbed in the left side, below the shoulder blade; and on the right side of the face, the wound on his side looked like it was stabbed with a knife about an inch wide; when witness found him, he appeared very weak and was bleeding, witness asked him, if he could get up, he said yes, but could not rise, he lived fifteen or twenty minutes, witness thinks he was in his proper mind; asked Marr, if he knew him, said he did, and called him by his proper name; witness don't know how deep the wound was, he bled right smart after he took him up, died (as witness thought) on the way as he was taking him home; he thought he was dead, witness did not see him breathe after he took him home; he said nothing about dying or hereafter; when the witness first saw him, he asked him if he could get up; he attempted to so, but could not, witness did not know his age, only supposed he was twelve or fourteen years. John Morgan, a witness; said he did not know much about George Marr's capacity; did not know whether he could read; in point of mental capacity, he was about like common boys; he would weigh about one hundred pounds; don't know of his going to church, thinks the boy was twelve or thirteen years of age, never heard him speak of religion, heaven or hell, the boy never was a witness; does not know, that the boy would know the obligations of an oath, should think he would know better than to tell a lie. Albert Morgan, says he has known George Marr 8 or 9 years, thinks he could read a little, recollects his being at church once, knows of his attending prayer every night, since the first of August last, don't know whether voluntarily or by compulsion. The deceased was considered a truthful boy, of ordinary intellect, as much so as common boys: deceased came to witness' father's to live, last spring two years, and continued to reside there up to the time of his death, never heard anybody speak of his truthfulness: he was truthful as far as witness knew, was twelve or fourteen years old.

The State now proposed to give in evidence the dying declarations of George Marr. The prisoner objected. The court overruled the objection and permitted the dying declarations to be given in evidence, and the prisoner excepted. Alexander S. McDonald recalled. Stated he asked George Marr, who stabbed him, he said Stuart stabbed him, said nothing more on that subject: the way he came to find him, he had started to hunt for those who had not come home. The sister of deceased found him, and called witness, she had left him when witness got to him, saw no marks of a scuffle, nor blood nor weapons on the ground where he found him; he was by the side of the road leading from Morgan's house to the place cultivated by Morgan down Perkins creek, about half a mile from Morgan's house or over; Morgan's lower place on Perkins creek about a mile and a quarter from his house, found him in Wayne county, Missouri; found the deceased between one and two o'clock, his sister had found him a few minutes before, had not left him more than five minutes. It had rained that day; saw no tracks of any persons, ground was wet, deceased died twenty-five or thirty minutes after he put him on the horse; had gone 150 yards when he asked him who stabbed him, thought he was dead when he got half a mile. The boy did not mention the subject of death, witness told deceased he was going to die; and he had better pray, he said he could not; this was after deceased had told him who stabbed him.

Thomas Hamilton, stated, that Noel Green, the defendant told him (the witness) about a fight, on the evening of the last of January or first of February last, can't tell exactly the words; they were in a fight, him and two of his brothers, and Stuart had a fight with William Morgan and two of his brothers-in-law, told him they came running out of the head of a bushy hollow and attacked prisoner and his company: Morgan came with his gun presented as if he were going to shoot, threatened to shoot if they did not leave there, cursed them: Stuart answered, that he would not go until he got ready, Morgan presented his gun, as though he was pointing at Stuart, snapped twice, then took a rest, and fixed; then Stuart fired: prisoner begged Morgan not to shoot, there were other ways of settling difficulties without shooting, but he did shoot: prisoner then raised his gun to strike him, but Morgan came round the tree, got the start of him, struck at him, the prisoner, knocked his gun out of his hands and knocked him to his knees, as he rose, Morgan again struck him and knocked him clear down. At that prisoner gets Dick's gun and twisted it out of his hands and aimed to break it round a tree but the thought struck him, that he would not, and he threw it away. At that time prisoner heard Morgan halloo murder, and asked Tom Stuart for God's sake to spare his life, prisoner then walked towards them, as they lay in a branch, several together, prisoner did not say how many. Then Stuart quit, and Morgan got up and walked off about ten steps, prisoner walked after him a few steps, Morgan turned round and said “Noel, I'll quit now, I'll fight no more,” witness asked prisoner where the boy was, he said he was there, but did not say where, asked him, if he was not in the fight, he said, not that he knew of, asked prisoner if he thought any of them were badly hurt, he said he did not think they were, asked him, which way they went, said, Morgan went one way and Dick Marr the other, said Morgan sat down by a log, and the boy, the last he saw of him was sitting by Morgan and appeared as though he was talking to him, the boy was not hurt as he knew of, the prisoner then said they gathered up their tools and went home. Prisoner's first statement was, that he and two brothers, Stuart and Cobb were in the woods peaceably cutting house-logs, this conversation took place on the road, they met a traveler and witness was told the boy was killed, he again spoke, the prisoner, and told him, “he thought the boy was hurt,” prisoner said he was not, that he knew of. Cross-examined: Stated that he don't know that he has stated all that passed, he has stated the substance, to the best of his recollection; prisoner told him, Stuart...