McMillen v. State

• Decision Date: 31 January 1850
• Citation: 13 Mo. 30
• Parties: MCMILLEN v. THE STATE OF MISSOURI.
• Court: Missouri Supreme Court

13 Mo. 30

MCMILLEN

v.THE STATE OF MISSOURI.

Supreme Court of Missouri.

January Term, 1850.

ERROR TO COOPER CIRCUIT COURT.

LEONARD & HAYDEN, for Plaintiff. 1. We object to the testimony of John Logsdon given in behalf of the State, that he knew there were unfriendly feelings existing between Jackson Logsdon and the other three defendants. 2. To the testimony of John Logsdon proving a fist fight between himself and John McMillen, one of the defendants. 3. To the exclusion of testimony proposed to be given by the defendant, through John McMillen, that there were no unfriendly feelings on the part of the witness (one of the defendants) to Jackson Logsdon. 4. To the exclusion of the testimony proposed to be given by the defendant, through Mrs. McMillen, that she heard Jackson Logsdon threaten to shoot John McMillen. 5. To the exclusion of the evidence proposed by the defendant to be given through John Prewitt of a transaction going to show that Jackson had a pistol for the purpose of confirming defendant's witnesses, to prove that he was armed with a pistol in the affray, and discrediting the State's witnesses who deny that fact. 6. To the court's refusal of the defendant's two last instructions, being the eighth and ninth. 7. To the court's refusing a new trial on account of the newly discovered evidence, and or the other reasons assigned in his motion therefor.

ROBARDS, Attorney-General, for The State, cited: 12 Wend. 41; 3 Johns. 532; 2 Caine, 90; 5 Mo. R. 532; 6 Mo. R. 301; 7 Mo. R. 419; 8 Mo. R. 227; 9 Mo. R. 166; 10 Mo. R. 65; 8 Mo. R. 131; 6 Mo. R. 186; 7 Mo. R. 316; 4 Mo. R. 540; 19 Wend. 562; Roscoe's Crim. Ev. 20: 7 Johns. 95; 15 Johns. 230; 7 Humphrey, 543.

NAPTON, J.

Aaron McMillen and his three sons, John, James and Michael, were jointly indicted for the murder of Jackson Logsdon. They were tried separately. The appellant, Aaron McMillen, was found not guilty of murder as charged in the indictment, but guilty of manslaughter in the third degree, and sentenced to imprisonment in the penitentiary for three years.

All the testimony given on the trial is not preserved in the bill of exceptions, but enough is stated to show the important facts in the case. The tendency of the evidance on the part of the State, which came mainly from the brother of the deceased and a young man named Casey, who was associated with the Logsdons, was to establish a preconcerted attack by the four McMillens upon Jackson Logsdon, when he was alone and without arms. It appeared from this testimony, that after the commencement of the affray, the two witnesses above mentioned came to the assistance of the deceased, and that in the rencontre which ensued Jackson Logsdon was killed, his skull being badly fractured and his body shot through with a pistol ball. These two witnesses were the only persons present at the killing; one of them, John Logsdon, the brother of Jackson having a loaded rifle which he brought with him, upon hearing the quarrel, and the other two without weapons. All the McMillens were armed, two with fire-arms (a gun and a pistol) and the other two with clubs. The witness, John Logsdon, snapped his pistol at one of the McMillens, as they advanced towards the Logsdons, and before his brother Jackson was killed.

The defense rested almost entirely upon the evidence of the three McMillens, who were not upon trial; and the wife of the one who admitted himself to have shot the deceased. Their testimony tended to show that the Logsdons had sought the rencontre and that only two of their party were present at the commencement of the attack; and that these two were pursuing their usual vocations, the one having started on horseback on his way to carry the mail, and the other accompanying him on foot for the purpose of feeding some stock at a field cultivated by the family at some distance from the house. These two witnesses and co-defendants were attacked by the Logsdons, and according to their statements, Jackson Logsdon was armed with a pistol and his brother with a rifle. John McMillen shot Jackson Logsdon, after he, Jackson, had presented a pistol at his breast, and Casey, the friend of the Logsdons, broke the skull of the deceased by a blow of his gun aimed at one of the McMillens. There was no testimony apart from the statements of these witnesses, that Jackson Logsdon had any pistol or other weapon.

It is unnecessary to notice the evidence more minutely, as the only errors assigned consist of the admission or exclusion of certain evidence offered on the trial. We have stated sufficient to show its general tendency on both sides.

1. John Logsdon, the principal witness for the State, testified, that there were unfriendly feelings between the defendant, Aaron McMillen and his brother, Jackson Logsdon; and he further testified that there were unfriendly feelings between the other defendants and Jackson Logsdon, his brother. This evidence was objected to, but was admitted and an exception taken. As the tendency and object of this evidence was to establish malice on the part of the defendant and a participation in this feeling by all the co-defendants, it is difficult to see any objection to its introduction. The point however, is not urged, and we will therefore pass to the second exception.

2. The witness, John Logsdon, previous to the close of the evidence on the part of the State, was recalled and stated that four or five days before the affray, he and John McMillen had a fist fight. This was objected to. It will be observed that all the evidence is not preserved in the bill of exceptions. The only objection which could be urged to this testimony, would be its irrelevancy, but it is impossible for this court to see, from the record, whether this objection existed or not. Standing as it does in the bill of exceptions, isolated and disconnected with what preceded and succeeded it, its materiality is not very manifest. The fact testified to, may have been very important, in two points of view, first, for the purpose of corroborating the testimony previously given, in relation to the state of feeling between these two families, and secondly, with a view to elucidate some other fact already, testified to in the case, and not now appearing upon the bill of exceptions.

3. Upon the examination of John McMillen, one of the co-defendants, the defendant proposed to prove by this witness that he (the witness) had no bad feeling for Jackson Logsdon previous to the affray. This testimony was objected to, and the question was not allowed to be answered. In this case, it will be seen that all the co-defendants, who were not upon trial, were permitted to testify without objection. This was so held in Garrett and others v. The State, 6 Mo. R. 1.() That decision was based upon a passage in 2 Starkie, 22, and the passage in Starkie, upon an observation of Lord Hall, “that the witness is never indicted, because that weakens and disparages his testimony, but possibly does not take away his testimony.” The opinion of Starkie seems to be without authority and is indeed accompanied with a quœre in his own notes. Professor Greenleaf also says: “it makes no difference as to the admissibility of an accomplice, whether he is indicted or not, if he has not been put upon his trial at the same time with his companions in crime, he is also a competent witness in their favor.” For this no authority is cited and in a previous passage, the same author has said: “In regard to defendants in criminal cases, if the State would call one of them as a witness against others in the same indictment, this can be done only by discharging him from the...