State v. Bryant

• Decision Date: 31 January 1874
• Citation: 55 Mo. 75
• Parties: STATE OF MISSOURI, Respondent, v. NED. BRYANT, Appellant.
• Court: Missouri Supreme Court

55 Mo. 75

STATE OF MISSOURI, Respondent,

v.NED. BRYANT, Appellant.

Supreme Court of Missouri.

January Term, 1874.

Appeal from Greene Circuit Court.

Ellis, & Patterson, for Appellant.

I. The right of cross-examination is an absolute one, and essential to the competency of testimony. (1. Greenl. Ev., § 446.)

II. The court erred in not instructing the jury as to what constitutes murder in the second degree. (State vs. Matthews 20 Mo., 55; State vs. Wyatt, 50 Mo., 309.)

III. The court prescribed as the regulation question, to reach the character of the deceased, this, “What was his reputation for peace and quiet, in the community in which he lived, good or bad?” And refused to permit the defendant, to ask the two questions. 1. “Do you know McGee's reputation in his life-time in this community, for being a dangerous and desperate man?” 2. “Did you know what his reputation in this community was for going around armed?” These questions should have been permitted. (State vs. Keene, 50 Mo., 357.)

H. Clay Ewing, Attorney General, for Respondent.

I. The indictment was for murder in the first degree, and the court by instructions defined that crime--no other offense is charged. Even under the first instruction alone, without any other, the jury would be justified in finding the defendants guilty of murder in the second degree, or of any degree of manslaughter. The case of the State vs. Matthews, 20 Mo., 55, does not lay down a different rule.

II. It is conceded that defendants are entitled to cross-examine witnesses, and it will be seen by examination of the evidence in the record, that the defense of each was identical; and the case made by the attorneys, was simply to embarrass the proceedings. Legitimate cross-examination was not refused, and the discretion of the court was soundly exercised. Besides, no intimation is given as to the purpose of such further cross-examination.

WAGNER, Judge, delivered the opinion of the court.

One Tilly, and the defendant Bryant, were indicted in the Greene Circuit Court for murder in the first degree in killing a man by the name of McGee. On the trial they were convicted of murder in the second degree, and Tilly was sentenced to the penitentiary for life, and the defendant for the term of fifteen years. They were tried jointly, and defendant has alone appealed to this court. The principal questions relied upon arise out of the action of the court in its ruling in regard to the admission and rejection of testimony, and its eglect to give necessary instructions. The parties are all colored, and it seems that the difficulty arose and the homicide was committed at a ball, which they attended. The evidence shows very clearly that McGee, the deceased, at the time he was killed, had grappled the defendant, and was trying to pull a slung shot out of his (Mc Gee's,) pocket, when Tilly, who was defendant's friend, stabbed him with a knife, from which would he died.

Shortly after this occurrence, Tilly and the defendant left, and they were apprehended a few days afterwards with some horse drovers, and were assisting in driving the horses. They were coming in a direction which might lead to their home, where the crime was committed. On cross-examination it was proposed to show, that, when they were arrested, they said that they had been to see some relations, and were on their return home. This evidence was objected to, and excluded by the court. We see no reason for questioning the soundness of the ruling in the rejection of this evidence. It was not brought forth as a part of any conversation had on that subject.

It does not appear, that anything was said at that time in reference to Tilly and defendant making their escape, nor is the matter noticed, either in the evidence or the instructions. There is no intimation anywhere to be found, that the prosecution ever relied upon the fact of flight, as the slightest evidence conducing to establish guilt. Under such circumstances the defendants could not give in their own declarations in their favor.

The defendants were both tried together, and after the trial was begun, and had proceeded for a time, it was discovered that their interests came in collision. There is a rule of the Circuit Court, forbidding more than one counsel on either side to examine witnesses. The defendants were represented by different counsel, and the counsel for Tilly was conducting the cross-examination. Defendant's counsel desired to question the witness in regard to matters which were deemed material to his defense, but which were regarded as damaging to Tilly, the co-defend...