State v. Cochran

• Decision Date: 07 February 1899
• Citation: State v. Cochran, 147 Mo. 504, 49 S.W. 558 (Mo. 1899)
• Parties: STATE v. COCHRAN.
• Court: Missouri Supreme Court

49 S.W. 558

147 Mo. 504

STATE v. COCHRAN.

Supreme Court of Missouri, Division No. 2.

February 7, 1899.

CRIMINAL LAW — CONTINUANCE — ABSENT WITNESSES — DILIGENCE OF ACCUSED — MATERIALITY OF TESTIMONY — HOMICIDE — SELF-DEFENSE — INDICTMENT — EVIDENCE — WITNESSES — INSTRUCTIONS.

1. Defendant in a case which had been twice continued described a desired witness to his counsel as R.'s largest boy, and they subpœnaed R.'s oldest son, who was not the person wanted. Accused did not know this until the day of trial. Held, that a refusal to continue because of the absence of such person, on the ground that proper diligence had not been exercised, was not an abuse of discretion, warranting the setting aside of a conviction.

2. A conviction will not be set aside for refusal to grant a continuance to procure material testimony, unless it is reasonably probable that, if the absent witness had testified, a different result would have been reached.

3. It is proper to refuse a continuance to procure a witness whose testimony is competent only on the issue of self-defense, where accused does not state in his application that he intends to justify on that ground, since the materiality of the testimony does not appear.

4. Where a witness has been cross-examined with respect to statements made by him to others concerning the subject-matter of his testimony, he may on the redirect examination state what he did say to such persons.

5. Accused's threat on the day of the homicide, and before its commission, that he would kill somebody before the week was out, and would like to kill some Grand Army man, is admissible on the question of malice; and this, though deceased was not a Grand Army man.

6. Evidence that immediately after the homicide, and after accused had left, one of the eyewitnesses concealed herself, and another followed accused at a distance, and, when he halted, first concealed himself, and then returned, and concealed his and accused's guns, does not prejudice accused.

7. The fact that, prior to the homicide, deceased, to accused's knowledge, had whipped his wife, who was accused's aunt, neither mitigates nor justifies the homicide.

8. After a fight between deceased and accused, the latter suggested that they become reconciled, and they shook hands, and went to the house. On the way, accused remarked that he was sorry the gun had been shot off, as it was the last load he had; and, when going into the house, he surreptitiously possessed himself of two cartridges, which he concealed from a third person in the room, and, as soon as the latter left, he loaded the gun, and shot deceased in the back, without warning. After deceased had fallen, he shot him again. Held, that it was not error to withdraw from the jury the consideration of anything but murder in the first degree.

9. A refusal of correct instructions is not erroneous where those given fairly present every phase of the case.

10. The court charged that the willfulness, deliberation, and malice aforethought necessary to constitute murder in the first degree need not be proved by direct evidence, but may be deduced from the circumstances of the killing, and that a verdict of murder in the first degree is warranted if their existence is inferred from all the evidence. Another instruction stated that the presumption of defendant's innocence continues until overcome by evidence showing him guilty beyond a reasonable doubt, and that he must be acquitted if, on the whole case, the jury had a reasonable doubt of his guilt. Held, that the first instruction, when considered with the latter, did not withdraw from the jury defendant's right of self-defense.

11. Nor was it erroneous as not requiring the elements of murder in the first degree to be established beyond a reasonable doubt.

12. An instruction that accused should be acquitted if, at the time of the killing, he had reasonable cause to apprehend a design on the part of deceased to take his life or to do him great personal injury, and believed that it was necessary for him to shoot in order to protect himself, but that a mere belief was insufficient, unless there was a reasonable cause to justify it, was not erroneous, as withdrawing from the jury defendant's right of self-defense.

13. An indictment alleging that accused, feloniously willfully, deliberately, premeditately, and on purpose, shot deceased with a loaded shotgun, discharging it at him, thereby striking him with the gun, and with the leaden balls with which it was loaded, and wounding him; that he gave deceased a mortal wound, of which he died; and that, in the manner aforesaid, he killed and murdered him, — charges murder in the first degree.

Appeal from circuit court, Harrison county; P. C. Stepp, Judge.

Freeman Cochran was convicted of murder in the first degree, and he appeals. Affirmed.

The indictment was as follows: "The grand jurors of the state of Missouri, summoned from the body of Harrison county, impaneled, sworn, and charged to inquire within and for the body of the county of Harrison and state aforesaid, upon their oaths present and charge that Freeman Cochran, on the 17th day of August, A. D. 1897, at the said county of Harrison, in and upon one George Stanbrough, then and there being, feloniously, willfully, deliberately, premeditatedly, and on purpose, and of his malice aforethought, did make an assault, and with a dangerous and deadly weapon, to wit, a shotgun, then and there loaded with gun-powder and leaden balls, which he, the said Freeman Cochran, in both his hands then and there had and held, at and against him, the said George Stanbrough, then and there feloniously, willfully, deliberately, premeditatedly, on purpose, and of his malice afore-thought, did shoot off and discharge at and upon the said George Stanbrough, then and thereby, and by thus striking him, the said George Stanbrough, and with the shotgun aforesaid, and the leaden balls aforesaid, then and there feloniously, willfully, deliberately, premeditatedly, and on purpose, and of his malice aforethought, did strike, penetrate, and wound him, the said George Stanbrough, in and upon the back of the head of him, the said George Stanbrough, then and thereby feloniously, willfully, deliberately, premeditatedly, and on purpose, and of his malice aforethought, giving to him, the said George Stanbrough, then and there, with the dangerous and deadly weapon, to wit, the shotgun aforesaid, and the gunpowder and leaden balls aforesaid, in and upon the back of the head of him, the said George Stanbrough, one mortal wound, of the breadth of two inches, and of the depth of three inches, of which mortal wound the said George Stanbrough then and there instantly died. And so the grand jurors aforesaid, upon their oaths aforesaid, do say that the said Freeman Cochran him, the said George Stanbrough, in the manner and by the means aforesaid, feloniously, willfully, deliberately, premeditatedly, and on purpose, and of his malice aforethought, did kill and murder, against the peace and dignity of the state."

At the request of the state, the court gave the following instructions, among others: "(10) He who willfully — that is, intentionally — uses upon another at some vital part a deadly weapon, such as a shotgun, must, in the absence of justifying facts, be presumed to know that the effect is likely to be death, and, knowing this, must be presumed to intend the death which is the probable consequence of such an act: and, if such deadly weapon is used without just cause or provocation, he must be presumed to do it wickedly and from a bad heart. If, therefore, you believe and find from the evidence in the cause that the defendant killed George Stanbrough, by shooting him in a vital part with a manifest design to use such shotgun upon him, and with sufficient time to deliberate and fully form the conscious purpose to kill, and not under such circumstances as to justify him on the ground of self-defense, then such killing is murder in the first degree. And while it devolves upon the state to prove the willfulness, deliberation, premeditation, and malice aforethought, all of which are necessary to constitute murder in the first degree, yet these need not be proven by direct evidence, but may be deduced from all the facts and circumstances attending the killing; and, if you can satisfactorily and reasonably infer their existence from all the evidence, you will be warranted in finding the defendant guilty of murder in the first degree." "(12) Upon the question of self-defense, the court instructs you that if, at the time the defendant shot George Stanbrough, he (the defendant) had reasonable cause to apprehend a design on the part of said Stanbrough to take his life, or to do him some great personal injury, and there was reasonable cause for him to apprehend immediate danger of such design being accomplished, and that, to avert such apprehended danger, he shot, and that, at the time he shot, he had reasonable cause to believe, and did believe, that it was necessary for him to shoot and kill to protect himself from such apprehended danger, you will acquit on the ground of self-defense. It is not necessary that the danger should have been actual or real, or that the danger should have been impending and about to fall. All that is necessary is that the defendant had cause to believe, and did believe, these facts. On the other hand, it is not enough that the defendant should have so believed. He must have had reasonable cause to so believe. Whether or not he had reasonable cause is for you to determine, under all facts and circumstances given in evidence. If you shall believe from the evidence that the defendant did not have reasonable cause to so believe, you cannot acquit him on the ground of self-defense, although you may believe that the defendant really thought that he was in danger." Appellant contended that these instructions were erroneous, in that they withdrew from the jury...