State v. Earnest
| Decision Date | 31 October 1879 |
| Parties | THE STATE v. EARNEST Appellant. |
| Court | Missouri Supreme Court |
Appeal from Cedar Circuit Court.--HON. JOHN D. PARKINSON, Judge.
REVERSED.
J. B. Upton for appellant.
1. After the court had permitted Hardy and Lindsey to testify, it certainly erred in refusing to allow defendant to prove their testimony false. This refusal cannot be justified by saying that it was immaterial where Robertson was; he was an alleged accomplice and co-conspirator. Besides, the witnesses swore that they knew Robertson better than Earnest, and if they were mistaken as to one, they were likely to be mistaken as to the other. The testimony of these two witnesses was very severe upon defendant, and he should have been allowed to prove them perjurers. 2. The instruction is wrong. Our statute does not make every homicide committed in the attempt to perpetrate robbery, &c., murder in the first degree, but every murder so committed. Wag. Stat., § 1, p. 445.
J. L. Smith, Attorney-General, for the State.
1. The evidence offered by the defense as to Robertson's whereabouts, was properly excluded. Adriance v. Arnot, 31 Mo. 471; McKern v. Calvert, 59 Mo. 243; Lawrence v. Barker, 5 Wend. 301; Spenceley v. De Willott, 7 East 108; 1 Greenl. Ev., § 455; Commonwealth v. Cain, 14 Gray 7. 2. The instruction was correct. State v. Green, 66 Mo. 631, 647; State v. Miller, 67 Mo. 604; State v. Wieners, 66 Mo. 17, 22.
At the September term, 1879, of the Cedar circuit court, the defendant and James Robertson and T. B. Hopper, were indicted for the murder of Samuel C. Ham. He had a separate trial and was found guilty of murder in the first degree, and from the judgment on the verdict has appealed.
The evidence for the State tended strongly to prove the charge alleged in the indictment, and conclusively proved, that three persons went to deceased's house to rob him, and that one of them shot him while he was attempting to escape from them. Whether the accused was one of those persons was the only question admitting of any doubt. The evidence for the defense tended to prove an alibi. George Lindsey and Newton Hardy, for the State, testified, that they saw defendant and Jas. Robertson, about three or four o'clock on the afternoon of the day that Ham was killed, traveling together on the Humansville road, toward Ritchey's mill; that they passed within fifty yards of where witnesses were sitting in Lindsey's yard. This evidence conduced strongly to disprove the alibi, relied upon by defendant. Defendant then offered to prove that at the time Lindsey and Newton Hardy testified to having seen Jas. Robertson in company with defendant pass Lindsey's, Robertson was at Smith's house, twelve miles from Lindsey's; but on objection by the State, the court refused to permit defendant to introduce this evidence.
For the State the court gave the following instruction of which the defendant complains: “The court instructs the jury that if they believe from the evidence that the defendant, S. T. Earnest, on or about the 27th day of August, 1879, at the county of Cedar, in the State of Missouri, willfully, deliberately, premeditatedly, and of his malice aforethought, or in the attempt to commit a robbery, shot and killed Samuel C. Ham, they will find the defendant guilty of murder in the first degree as charged in the indictment.”
It will be observed that the court declares to the jury, that a homicide committed in the attempt of the slayer to perpetrate a robbery, is, as a matter of law, murder in the first degree. The statute does not declare that every homicide committed in the perpetration, or attempt to perpetrate, any arson, rape, robbery, &c., shall be murder in the first degree, but that any murder, so committed, shall be deemed murder of the first degree. It recognizes as possible, the commission of a homicide in the attempt to perpetrate either of those crimes that will be a less crime than murder of the first degree. Even when the circumstances warrant such an instruction, it is erroneous to declare, as the court did in this case, that a homicide committed in the attempt to perpetrate one of the other crimes named in the statute, is necessarily murder. Here such an instruction was wholly unnecessary. The parties who killed Ham were guilty of murder, without any reference to the design to...
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