State v. Barham

• Decision Date: 30 April 1884
• Citation: 82 Mo. 67
• Parties: THE STATE v. BARHAM, Appellant.
• Court: Missouri Supreme Court

82 Mo. 67

THE STATE

v.BARHAM, Appellant.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Dunklin Circuit Court.--HON. R. P. OWEN, Judge.

REVERSED.

S. M. Chapman for appellant.

(1) The testimony of the witness Crawford that Nash left the country as soon as the shooting was over, and that he did not see him about after that, was improper and wrong. No act or declaration of one co-defendant, after the common enterprise is ended, can be given in evidence against his alleged co-conspirators. Wharton's Crim. Ev., § 699; People v. Stanley, 47 Cal. 112; State v. Duncan, 64 Mo. 262. (2) The defense should have been permitted to prove by the witness Crawford and others the desperate and dangerous character of the persons by whom defendant had been threatened, after the homicide. (3) The court should have instructed the jury upon the lower grades of homicide, especially murder in the second degree, and for this purpose all the testimony, including defendant's, should have been considered. State v. Banks, 73 Mo. 592; Crawford v. State, 12 Ga. 142; State v. Bryant, 55 Mo. 79. This should have been done whether asked by defendant or not. State v. Mathews, 20 Mo. 57; State v. Jones, 61 Mo. 236; State v. Banks, 73 Mo. 592; 2 Bishop Crim. Proc., (3 Ed.) § 638a; State v. Branstetter, 65 Mo. 155. (4) It was a violation of all legal fairness and good faith upon the part of the prosecution, after having admitted that the persons named in the application to continue, would, if present, testify as therein alleged, and that the same should upon the trial, be “read and admitted as and for their evidence,” to tell the jury that it was not the testimony of sworn witnesses, but a statement “artfully prepared by counsel for defendant; that it was all a tissue of lies; that it contained nothing but lies, except a few immaterial things; that the persons named had never seen that statement, and would not have so sworn if they had been present.” State v. Underwood, 75 Mo. 234; State v. Roark, 23 Kas. 151; State v. Hickman, 75 Mo. 421

D. H. McIntyre, Attorney General, for the State.

Counsel for the State, in his closing argument, had the right to indulge in severe invective against defendant, and to comment upon the evidence, including the affidavit for continuance, which was evidence like the rest. And it was not error for counsel to draw inferences in his argument unfavorable to defendant, because of his failure to testify fully upon the whole case. State v. Emory, 79 Mo. 461. Smith was indicted as principal in the first degree, and the defendant as principal in the second degree. But for all the purposes of the trial, they may be regarded as being jointly indicted as principals in the first degree, for the statute has abolished all distinction between the two degrees. R. S. 1879, § 1649; State v. Ross, 29 Mo. 32; State v. Davis, 29 Mo. 391; State v. Talbott, 73 Mo. 347; 1 Bishop Crim. Law, (7 Ed.) § 648, and authorities cited. It was competent to prove what part each performed in the act of killing, and that too without first establishing a conspiracy by them to kill the deceased. It was not necessary to prove a conspiracy at all. It was sufficient to show that they united in the act of killing, and this could be proved by their acts at the time and the weapons they used. State v. Underwood, 57 Mo. 40. The agreement to the commission of an offense may be inferred from acts as well as declarations. Taylor v. State, 9 Tex. App. 100. Even if it were necessary that there should be proof of an unlawful combination to kill the deceased, it is not necessary that it should be direct and positive. Defendant's connection with the transaction being shown, the jury may determine from the circumstances whether there was a combination. 4 Criminal Law Magazine, p. 102. Where the acts of the principal in the first degree are connected with defendant, on trial as principal in the second degree, they may be made to appear in the ordinary way. 2 Bishop Crim. Proc. (3 Ed.) § 14. In this case the acts of all the parties were so closely connected that they could not be separated, and what was done by Smith and Nash was admissible as res gestae. The instructions given covered the whole case, and the evidence did not warrant the giving of instructions upon any grade of homicide besides murder in the first degree.

NORTON, J.

The defendant and Willie Nash were jointly indicted as accessories with Daniel A. Smith as principal at the adjourned February term, 1881, of the circuit court of Dunklin county for murder in the first degree in killing one John C. Crawford. Defendant, Barham, was separately tried at the November term, 1883, of said court, and was convicted of murder in the first degree. Defendant having made an unsuccessful motion for a new trial, brings his case to this court by appeal, and assigns, among other things, the action of the court in admitting improper and rejecting proper evidence, in not instructing the jury as to some grade of homicide less than murder in the first degree, and in refusing to grant a new trial on account of improper conduct on the part of counsel for the state in the closing argument to the jury. The last of these objections will be noticed first.

When the cause was called for trial defendant made an application for continuance on the ground of the absence of certain witnesses named therein, who had been duly subpœnaed, and set out in the application the facts he expected to prove by said witnesses. Upon an admission by the prosecuting attorney that the persons named in the application would, if present, testify as was alleged in the application, and that the statement therein set forth should be read on the trial as and for their evidence, the continuance was refused as provided in section 1886, Revised Statutes, which declares that if upon application to continue, the adverse party “will consent that on the trial the facts set out in the application, or affidavit as the facts which the party asking the continuance expects to prove by the absent witness shall be taken as, and for, the testimony of such witness, the trial shall not be postponed for that cause; but the facts thus set out shall be read on the trial and shall be taken and received by the court or jury trying the cause as the testimony of the absent witness.” The trial then proceeded, and the statement contained in the affidavit was read in evidence, and the counsel for the State, in the closing argument before the jury in...