State v. Christian

• Decision Date: 31 October 1877
• Citation: 66 Mo. 138
• Parties: THE STATE v. CHRISTIAN, alias WHITE, Appellant
• Court: Missouri Supreme Court

66 Mo. 138

THE STATE

v.CHRISTIAN, alias WHITE, Appellant

Supreme Court of Missouri.

October Term, 1877.

Appeal from Boone Circuit Court.--HON. G. H. BURCKHARDT, Judge.

Turner Sebastian and Peirce & Rollins for appellant.

1. The court erred in excluding the testimony of Mrs. White. Crowther v. Gibson, 19 Mo. 365; Harriman v. Stowe, 57 Mo. 93.

2. In overruling defendant's objection to instructions 5 and 10, given to the jury at the instance of the State. State v. Underwood, 57 Mo. 40; Russell on Crimes, Vol. 1, §§ 527, 528, 529.

3. In refusing to give instructions 2, 3, 4, 5 and 6, as prayed by defendant. Warton's Am. Crim. Law, §§ 974, 985, 986.

4. And in instructing the jury, of its own motion, as set forth in the qualification of instruction 8. State v. Underwood, 57 Mo. 40.

J. L. Smith, Attorney-General, for the State.

1. The court did not err in refusing to allow defendant's counsel to ask one Mrs. White, (mother of defendant,) if she could identify a certain knife, shown to her, as the one defendant had in his hand, when he came home on the evening of the killing. There was no evidence showing, or tending to show, that this was the knife with which the killing was done. It is true the testimony tends to show that the killing was done with some sharp instrument, but the exact kind of an instrument, even, is unknown. The fatal wound may have been inflicted with a very different instrument than this knife, and there is nothing shown, either as to time or place, except the mere fact of defendant's having a knife when he arrived at home, which, in anywise, connects the knife offered in evidence with the killing. It is not shown to be a part of the res gestae, and, hence, is inadmissible. 1 Greenleaf Ev., Sec. 108; Merchants' Bank v. Berthold, 45 Mo. 527; Brownell v. Pacific R. R., 47 Mo. 239; Harriman v. Stowe, 57 Mo. 93. Again, the declarations and conduct of a defendant, not on the occasion of the killing, in his own interest, are not admissible in evidence; he cannot manufacture testimony in his own behalf. McLean v. Rutherford, 8 Mo. 114.

2. There was no error in the giving of instructions 5 and 10 for the State. Wag. Stat. Vol. 1, p. 446, Sec. 2; State v. Kennedy, 20 Iowa 569; State v. Benham, 23 Iowa 154; State v. Hays, 23 Mo. 287; State v. Starr, 38 Mo. 270; State v. Shoultz, 25 Mo. 152; State v. Green, 37 Mo. 466; Russell on Crimes, (Ed. of 1845,) Vol. 1, pp. 527, 528, 529, 530, 531, 537; 1. East P. C., Ch. 5, § 24, p. 241; State v. Scott, 4 Iredell 409; State v. Underwood, 57 Mo. 49; State v. Hudson, 59 Mo. 137. A conviction of the crime of murder in the second degree necessarily acquitted him of murder in the first degree. To reverse this case because an instruction on a grade of homicide of which the appellant was acquitted, was erroneously given, would be practically allowing him to take advantage of an error in his favor.

3. The court rightly refused to give instructions Nos. 2, 3, 4, 5 and 6, as asked by defendant, and did not err in adding the qualification to defendant's instruction No. 8. State v. Harris, 59 Mo. 556; State v. Hudson, 59 Mo. 138; State v. Schoenwald, 31 Mo. 147; State v. Starr, 38 Mo. 270.

4. Instructions given, Nos. 1 to 17, (including 8 and 11 refused,) for plaintiff; 1, 7 and 8 for defendant, as a whole, fully declared the law of the case, and if that be so, then there is no reversible error. State v. Hudson, 59 Mo. 138; State v. Shoultz, 25 Mo. 155.

NORTON, J.

Defendant was indicted at the April term 1876, of the Boone county circuit court, for murder in the first degree, in killing one Sydney E. Smith. He was duly arraigned and put upon his trial at the August term, 1876, of said court, which resulted in his conviction of murder in the second degree, and the assessment of his punishment to fifteen years imprisonment in the penitentiary.

The motions of defendant for new trial and in arrest of judgment having been overruled, he brings the cause to this court by appeal. The causes relied upon for a reversal of the judgment, are the alleged errors of the court in excluding legal evidence, and in giving improper and refusing proper instructions.

1. HOMICIDE: evidence: res gestae.

The mother of defendant was introduced as a witness on the trial, and testified that defendant came to her house on the night of March 4th, 1876, between eleven and twelve o'clock; that she was asleep when he came, and on being aroused, she got up and let him in; that he had blood on his face and hands, and told her that he had had a difficulty with a student and had cut him; that defendant had a knife in his hands with blood on it. The counsel of defendant then proposed to identify the knife by her, to which the State objected, which objection was sustained on the ground that there was no evidence tending to show that the killing was done with the knife proposed to be identified. We are at a loss to perceive on what principle the rejected evidence could have been received. The killing took place about eleven o'clock of the night of March 4th, 1876. Immediately after the stabbing, resulting in the death of deceased, was done, defendant fled. How much time elapsed between the cutting and the arrival of defendant at the house of his mother, does not appear, except from her statement that she was aroused from sleep by defendant between eleven and twelve o'clock, nor does it appear how far she lived from the scene of the homicide. What defendant said or did after he reached the house of his mother between a half hour and hour after the tragedy was enacted, does not constitute a part of the res gestae. To thus extend the rule would be laying down a dangerous precedent under cover of which persons charged with homicide could manufacture evidence in their own favor. We think that the objection was properly sustained upon the ground, if no other, that defendant had ample time and opportunity between the occurrence of the difficulty and his arrival at the house of his mother to cast away or conceal the instrument with which the cutting was done, and substitute the knife in question in its stead.

2. HARMLESS ERROR IN INSTRUCTIONS: murder.

Seventeen instructions were asked for by the State, all of which were given except the eleventh. To the fifth and tenth defendant excepted. The two instructions thus excepted to relate to the offense of murder in the first degree, and as defendant was convicted only of murder in the second degree, he has sustained no injury thereby, though they might be open to the objections urged against them by counsel. No exceptions were taken to the instruction given by the court relating to the offense of which defendant was convicted, and no objection has been urged to it here.

3. INSTRUCTIONS.

Exceptions were also taken to the action of the court in refusing instructions numbered 2, 3, 4, 5 and 6, asked for by defendant. The second and fourth of the refused instructions relate to the question of reasonable doubt, and as the court had given the usual instructions embracing that subject in language often approved by this court, it was unnecessary to repeat the same principle in other instructions in different words.

4. REASONABLE DOUBT.

Besides this, the instructions as asked were objectionable in their phraseology, and were calculated to mislead in this, that in neither of them was the jury told what a reasonable doubt was. They were also objectionable because the court was asked to instruct the jury that if they had a reasonable doubt as to the existence of any fact necessary to make up the offense, they must acquit. This instruction was in direct conflict with the ruling of this court in the case of State v. Schoenwald, 31 Mo. 147, where it was held that the court committed no error in refusing an instruction to the effect that if all the facts and circumstances left it in doubt whether defendant, or some other person, inflicted the fatal blow, they could not find defendant guilty. It is the well settled law here that the accused is only entitled to an instruction relative to the consequences of his guilt on the whole evidence in the case, and that he has no right to single out each material fact necessary to be found, and ask the court to direct the jury that if they have a doubt as to the existence of such fact, they must acquit.

5. MANSLAUGHTER: murder: agreed combat: self-defense.

The third, fifth and sixth instructions were to the effect that if defendant and deceased engaged in a mutual combat, and such combat became unequal by reason of the greater physical strength of the deceased, and defendant, in the heat of blood engendered by the conflict, stabbed the deceased with a deadly weapon, without the design to effect death, and the killing was neither justifiable nor excusable, they will find defendant guilty of manslaughter in the third degree, unless they should further find that said combat was entered into with the design and purpose to kill the deceased, or to do him great bodily harm.

These instructions were refused, and the court gave the following: “If the jury believe from the evidence that defendant and deceased engaged in mutual combat, and that such combat became unequal by reason of the greater physical strength of the deceased, and that defendant's blood became heated on lawful provocation, that defendant, in such heat of blood, with a deadly weapon, and without a design to effect death, stabbed and killed the deceased, and that such killing is neither justifiable nor excusable, you can find defendant guilty of no crime greater than manslaughter in the third degree, unless you shall further find that defendant and deceased had a mutual understanding and...