State v. Brown

• Citation: 64 Mo. 367
• Parties: STATE OF MISSOURI, Respondent, v. JAMES F. BROWN, Appellant.
• Decision Date: 30 April 1877
• Court: United States State Supreme Court of Missouri

64 Mo. 367

STATE OF MISSOURI, Respondent,

v.JAMES F. BROWN, Appellant.

Supreme Court of Missouri.

April Term, 1877.

Appeal from Taney County Circuit Court.

John O'Day, for Appellant, cited: Eastwood vs. People, 3 Park. Crim. Rep. pp. 25-58, and cases cited; Watson vs. People, 4 Id. pp. 619-50; Wagn. Stat. 447, §§ 13, 18; State vs. Matthews, 20 Mo. 55; Coleman vs. Roberts, 1 Mo. 97; Fugate vs. Carter, 6 Mo. 267, 279; Hickey vs. Ryan, 15 Mo. 62.J. L. Smith, Att'y Gen'l, for Respondent, cited: Wagn. State. 1081, § 2; State vs. Bleckly, 18 Mo. 428; State vs. Welch, 33 Mo. 33; State vs Cornell, 49 Mo. 282; Fanny vs. State, 6 Mo. 122; Wood vs. Hicks, 36 Mo. 326; Langsdorf vs. Field, 36 Mo. 440; State vs. Starr, 38 Mo. and cases cited; State vs. Linney, 52 Mo. 40; State vs. Underwood, 57 Mo. 40; State vs. Hayes, 23 Mo. 287; State vs. Holme, 54 Mo. 153; State vs. Ross, 29 Mo. 32; Franz vs. Hilterbrand, 45 Mo. 121; State vs. Harris, 59 Mo. 550.

HENRY, Judge, delivered the opinion of the court.

At the March term, 1874, of the Taney circuit court, defendant was indicted for the murder of Joseph Long. At an adjourned term of said court in December following, he filed his petition asking to be furnished with a copy of the indictment against him, and objecting to his arraignment until he should have been served with such copy, but it appearing to the court that he had previously been duly served and furnished with a copy of said indictment, his application was refused. The court heard testimony, and the evidence preserved in the bill of exceptions we think fully sustains the finding of the court. The cause, on defendant's application, was continued to the March term, 1875, at which he filed two several pleas in abatement; the first, alleging, substantially, that Joseph Glenn, one of the eighteen persons who composed the grand jury that returned the indictment against him, was not a freeholder or householder of Taney county, and that he had not been selected as a grand juror by the county court of said county, and that when said jury was sworn defendant was in Green county, in the custody of the sheriff of said county, and had no opportunity to challenge said juror, or the array.

The second plea was, in substance, that the record failed to show that the county court of Taney county selected the grand jurors, or either of them, and alleged that five of the eighteen were not selected by said court, and five others selected were not sworn on the jury, or discharged by the court.

There was a demurrer to each of these pleas, sustained by the court, and it is sufficient on that subject to say, that all the questions raised by the demurrers are settled by the cases of the State vs. Welch (33 Mo. 33); State vs. Blakey (18 Mo. 428), and State vs. Connell (49 Mo. 282), which fully sustain the action of the court.

There was then a trial of the cause, which resulted in a conviction of defendant of manslaughter in the second degree; and his punishment was assessed at three years' imprisonment in the penitentiary.

Motions for a new trial and in arrest of judgment were overruled, and defendant has prosecuted his appeal to this court.

The record is voluminous and portions of it are several times unnecessarily repeated, and there is a considerable portion of it that might have been entirely omitted, without prejudice to either party.

The evidence was somewhat contradictory, but was to the effect that defendant was engaged to be married to Miss Maddershott, who had lived in the family of deceased; that deceased was opposed to the match, and had threatened defendant's life if he married the young lady; that the 31st day of December, 1873, was appointed for the marriage, and on the evening of that day, at the residence of Jasper J. Brown, where the ceremony was to take place, there were several persons besides said Jasper Brown, uncle of defendant, defendant's mother, Miss Maddershott, and defendant; that deceased came to the house, and without any ceremony walked in, when he and defendant immediately commenced quarreling. The “lie!” and “d--d lie!” passed between them, and Jasper Brown ordered them both out of the house, and succeeded in getting them out. Deceased then started to go home, and as he walked towards the gate opening out of Jasper Brown's yard, the quarrel was renewed, and about the time deceased reached the gate defendant called him “a d--d liar.” He then called defendant ““a d--d liar” and turned and approached defendant, and when within a few feet of him, defendant drew a pistol and shot him.

There was testimony to the effect, that deceased was in the habit of carrying a dirk knife, but no weapon was found upon his person, and the evidence is conclusive, that when killed he was unarmed, except with a barlow knife unopened in his pocket.

After he had killed deceased, defendant went into the kitchen and Miss Maddershott asked him why he had killed Long, and, according to one witness, he replied that “no man could call me [him] a d--d liar and live.” Miss Maddershott testified that his reply to her inquiry was “no man shall call me a d--d liar, and come rushing on me with a knife, as Long did.” There was conflicting testimony as to the manner in which Long approached defendant from the gate. Some of the witnesses think he had his right hand raised, others are positive he had not. Some testified that defendant renewed the quarrel in the yard, others that he did not. The defense offered to prove by Mrs. Malinda Brown, mother of defendant, that immediately after the shooting, while defendant was present, and Long was lying where he had fallen, a little girl nine years of age, then and there exclaimed that “Mr. Long had a knife in his hand.” The State objected and the court sustained the objection, and in this it is contended that the court erred.

We think otherwise. It was no part of the res gestæ. It was after Long was killed. If the exclamation had been made while Long was approaching, and before the fatal shot was fired, it would not perhaps have been hearsay, but a circumstance to be considered by the jury in determining whether defendant was acting under an apprehension that deceased was about to assail him with a deadly weapon. After the fight was over the exclamation could not be a part of the res gestæ, and the child could have testified as to what she saw. The court did not err in excluding the testimony.

One of the grounds relied upon in the motion for a new trial was misconduct of the jury in visiting and viewing the ground where the fight occurred, in the absence of defendant, and without his knowledge or consent, and without leave of the court. Affidavits were read in support of this motion. The facts proven by those affidavits are, that the jury during the trial of the cause boarded at the house of J. J. Brown; that they were seen on and looking at the ground where Long was killed, but witnesses could not state that they were looking at the ground with a view of understanding how the killing was done, nor was it shown that they said anything about it, or that they conversed among themselves in regard to the ground.

The case of Martin Eastwood vs. People, (3 Park. Crim. Rep. 215,) is relied upon as an authority for the position that such conduct on the part of the jury entitled defendant to a new trial. In that case, the jury were permitted by the officer in charge of them to separate and converse with persons in the street. After the testimony was closed, before the case was summed up, six or eight of the jurors went and examined the ground where the blow which killed the deceased was given, about two miles from the court house. They went to the residence of one Hansford, and Hobbie--one of the jurors--opened the gate, stepped into the yard and placed himself upon the spot where Hansford's daughter had testified, on the trial, that she stood when she saw the defendant strike the deceased; and then turning his head and looking toward the place where the deceased fell, Hobbie remarked that “Miss Hansford had a good view from that point, and could see all that occurred.” The mere recital of the facts in that case, is sufficient to show the striking difference between that and the case at bar.

The...