State v. Atchley
| Decision Date | 02 February 1905 |
| Citation | 84 S.W. 984,186 Mo. 174 |
| Parties | THE STATE v. BENJAMIN ATCHLEY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Dallas Circuit Court. -- Hon. Jas. T. Neville, Judge.
Reversed and remanded.
Mayfield Moore, Miller & Mayfield for appellant.
(1) The verdict of the jury was the result of bias and prejudice of the citizens of Dallas county. Defendant being a non-resident and the deceased a resident of Dallas county, the matter being fully discussed by the press and the public, sympathy in his behalf created such a bias and prejudice against defendant that he should have had his change of venue to some county in the same circuit where neither had resided and where each would have had equal footing. (2) The trial court erred in not permitting defendant to show that he demanded at various times prior to the tragedy a peace warrant against the deceased. This evidence was very material, in that it was a circumstance which the jury had a right to consider as an act of good faith on the part of defendant, whether or not he was justifiable in the act and at least a circumstance tending to mitigate the inference of bad faith and a malicious heart bent on mischief. (3) The trial court erred in refusing the instructions offered in behalf of defendant. They were wholesome and relevant instructions, especially number eleven, to the effect that Mrs. Atchley, wife of defendant, owned one-half interest in the milling property and had a right to be in and around the mill to see and look after her interest. (4) The court erred in allowing the State, on cross-examination of Mrs. Atchley, wife of defendant, to testify, over the objections of defendant, to matters not examined in chief. She being the wife of the defendant, the same rule of law and evidence on cross-examination would apply to her as it would to defendant.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
(1) The action of the trial court in passing upon the application for a change of venue on account of the bias and prejudice of the inhabitants, is a matter of discretion resting largely within the breast of the trial court, and will not be disturbed unless this discretion is shown by the record to have been abused. State v. Thompson, 141 Mo. 414; State v Wilson, 85 Mo. 339; sec. 2576, R. S. 1899. (2) The instructions given by the court of its own motion were competent and proper. They were fully authorized under the facts of the case. Those offered by defendant were each fully covered by those given by the court of its own motion, and no complaint can, therefore, be made to the refusal of the court to give those offered. Reasonable doubt is sufficiently defined. State v. Knock, 142 Mo. 524; State v. Sacre, 141 Mo. 67; State v. Nueslin, 25 Mo. 111. The instructions on inference, willfullness, intent, malice aforethought, deliberation and premeditation were correct. State v. Talbot, 73 Mo. 351; State v. Herrill, 97 Mo. 111. The court also properly instructed the jury that defendant had the right to act upon appearances. State v. Smith, 114 Mo. 406. Even though some of the instructions offered by defendant may have been competent, yet the principles embodied in them were contained in the instructions given by the court of its own motion, and it has been held by this court on various occasions that no error was committed by refusing defendant's instructions, even though they may state correct principles of law as applicable to the evidence, provided the same propositions be covered in other instructions. The reason for this is that a multiplicity of instructions must be avoided. State v. Herrell, 97 Mo. 105; State v. Owens, 78 Mo. 367; State v. Reed, 117 Mo. 604; State v. Jones, 78 Mo. 278; State v. Parker, 106 Mo. 217; State v. Gamble, 119 Mo. 427. Where the instructions given, taken all together, place before the jury every hypothesis presented by the evidence, no serious complaint can be alleged against them, nor can the trial court be charged with error because of its failure to give certain instructions offered by defendant. State v. Minten, 116 Mo. 605; State v. Novenger, 108 Mo. 116.
OPINION
In Banc.
On the 3rd day of December, 1902, the prosecuting attorney of Dallas county began this prosecution by filing in the office of the circuit clerk the following information:
On the same day the defendant was arrested and held to answer to the April term, 1903, of the circuit court of Dallas county.
The defendant was duly arraigned on the 6th day of April, 1903, and entered his plea of not guilty, and a continuance was granted on his application until July 20, 1903, and bail refused. On July 20th the cause was continued to the October term, 1903.
Upon previous notice, at the October term, 1903, an application for a change of venue from Dallas county was made by the defendant, on the ground of the prejudice of the inhabitants of said county.
The evidence pro and con on this application was heard and the change of venue denied. Thereupon an application based on the prejudice of Judge Cox was filed and sustained, and Judge James T. Neville of the Springfield circuit was called to try the case, and Judge Neville appeared and took charge of the case and granted a continuance until November 16, 1903.
On the 16th of November, 1903, the cause proceeded to trial. A jury was duly empaneled and the evidence heard. On November 20th the jury returned a verdict of guilty of murder in the second degree and assessed defendant's punishment at twenty years in the penitentiary, and after his motions for a new trial and in arrest had been heard and overruled, he was sentenced in accordance with the verdict. From that sentence he appeals to this court.
The bill of exceptions was filed, by leave of the court and pursuant to extensions of the time therefor, on April 29, 1904.
The evidence in substance tended to prove that on the day of the homicide the defendant, Benjamin Atchley, and the deceased, William Bramwell, were copartners in a mill located at Long Lane, twelve miles east of Buffalo, the county seat of Dallas county. Prior to going into partnership with Bramwell, Atchley and his family resided for many years in Lebanon, Laclede county. Atchley and Bramwell were equal partners in the mill. Very soon after they purchased the mill they made an order for some necessary repairs each agreeing to pay his half of the cost thereof.
It appears that defendant paid his half, but Bramwell failed to meet his part. Owing to his default a mechanic's lien was threatened; thereupon Mrs. Atchley, the wife of defendant, borrowed money on her separate estate to pay $ 160 which the deceased owed, and paid it off, and took a note for that sum secured by a mortgage on the half interest of the deceased in the mill. The evidence also tends to show that the deceased collected various debts due the firm, for which he had not accounted, aggregating perhaps $ 159.
On account of this method of the deceased in doing the business a bad state of feelings arose, and was existing on the 22nd day of November, 1903, the date of the homicide.
Wilkerson a witness for the State, says he went to the mill about the middle of the afternoon. When he first reached there it seemed that Bramwell, the deceased, was looking over the mill for some grinding that was missing and had the book in his hand. He went to the stairway that led down to the engine room, where defendant was at the time, and called defendant, and the...
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