State v. Elkins

• Decision Date: 30 June 1890
• Citation: 101 Mo. 344,14 S.W. 116
• Parties: STATE v. ELKINS.
• Court: Missouri Supreme Court

14 S.W. 116

101 Mo. 344

STATE v. ELKINS.

Supreme Court of Missouri.

June 30, 1890.

DYING DECLARATIONS — RES GESTÆ — COMPETENCY OF JUROR.

1. These words, uttered in extremis, "He picked a fuss with me, and was running over me, and, because I did not want him to, he killed me," state conclusions only, and are not admissible as dying declarations.

2. On an offer of evidence of dying declarations, it appeared that the deceased received a wound causing death within two days. When shot, he got on a horse, and rode a short distance to a house. He said to one who helped him on the horse that he was killed. Arriving at the house, he said, "I am killed." He asked if it was thought he could get well, and said he was killed, but not to take on; that he would have no taking on about it; and, "For God's sake, don't take it up!" Held sufficient evidence of a sense of impending dissolution.

3. A juror who has no fixed and settled opinion, and can try the cause without bias, is not disqualified by an impression from rumor only, though it would take evidence to remove it.

4. On a trial for murder, statements to bystanders, by one who was 50 to 100 yards away when the shot was fired, made after he at once ran up, are not admissible as res gestæ.

5. It is wrong not to allow a witness called to the character of another to be cross-examined as to his having given money to aid in the prosecution; but, several others having testified that it was bad, and no effort being made to sustain it, the error does not require a reversal.

6. The indictment having in one place "laden" ball for "leaden," the accused cannot demand another copy, and time to consider it, because the one given him does not repeat the error.

7. Instructions must be excepted to when given. It is too late to make objection for the first time in a motion for a new trial.

Appeal from circuit court, Ripley county; JOHN G. WEAR, Judge.

J. C. Sheppard and C. D. Yancey, for appellant. The Attorney General, for the State.

BLACK, J.

Joseph Elkins, the defendant, was convicted of murder in the second degree for killing Lemuel A. Morrison on the 8th February, 1886; his punishment being fixed at 10 years' imprisonment. From the evidence, it appears the defendant, the deceased, John Logan, and David Tarleton were at a store in the afternoon of the 8th February, 1886. Morrison, the deceased, left the store, and went to the house of Mrs. Ann Elkins, which was about a half mile distant. The defendant, Logan, and Tarleton followed him; all carrying shotguns. When leaving the store the defendant swore he would run the deceased off, or kill him. On the way, Logan and Tarleton shot off their guns, but for what purpose does not appear. They went into Mrs. Elkins' house, and while there defendant and deceased got into a controversy. The defendant picked up his gun, ad left the house, and the deceased followed. When not more than 20 or 30 feet from the house, the defendant shot the deceased. The buck-shot entered the breast, and some of them passed through the body. The deceased was going towards, and was close to, the defendant, when the latter fired. The deceased fell to the ground, then jumped up, and with assistance got on his horse, and rode to Mr. Coughran's, where he died on the second day after the shooting.

According to the defendant's witnesses, the controversy in the house arose over a twist of tobacco belonging to Morrison, which defendant put in his pocket, and afterwards handed back, saying it was all in fun. Tarleton says: "They then pushed each other round a little. Defendant put his hand in his pocket. Morrison put his hand in his pocket. Defendant walked to the door, and picked up his gun. Neither said anything. Morrison grabbed the gun, and said, `Joe, you are no part of a man.' Defendant said: `Turn my gun loose. I want to go home.' Defendant then called to John Logan, and said, `Let's go.' Logan and myself went out of the house after defendant went out. Morrison then came to the door. Defendant told Morrison `not to come out here.' Morrison then went right out, in a run, towards defendant. Morrison kept on running towards defendant. Defendant told him to stop twice, then snapped, then told him to stop again. He did not stop. Defendant then fired. Morrison was turning the end of fence when shot was fired, and was about five feet away. At the time the shot was fired, Morrison's left hand was up. Could not see his other hand. Morrison was drinking."

1. According to the bill of exceptions, when the cause came on for trial the defendant made it appear that the word "leaden," in the copy of the indictment which had been furnished him, was written "laden" in the indictment. Because of this error, he demanded a true copy, and also further time to consider the same, both of which requests were refused; and of these rulings error is assigned. The indictment, when first describing how the gun was loaded, speaks of "leaden balls," and, when describing the load discharged, says, "laden balls aforesaid;" and, in describing the wounding, it again speaks of "leaden balls aforesaid." The difference therefore, between the indictment and the furnished copy, is simply this: the copy in the three instances says "leaden balls," and in one instance the indictment says "laden balls aforesaid." Where ordinary process is served by copy, if the defendant cannot be misled or prejudiced by a mistake in the copy, the service will be good. Furnace Co. v. Shepherd, 2 Hill, 414. It is not contended that the use of the word "laden" vitiates the indictment. The copy states in correct language that which every one must know the indictment means. The defendant could not have been misled or prejudiced in the least by the clerical error in the copy; and, this being so, he had not just ground upon which to demand another copy, or time to consider the same.

2. A juror, upon his examination, stated that he heard of the killing of Morrison by defendant a few days after the occurrence; that what he then heard left an impression upon his mind, which impression he still retained; that he made no inquiry to ascertain the facts in the cause; that he could hear the evidence without bias, but it would require evidence to remove the impression; and that the impression was based upon what he heard from public rumor. This juror knew nothing about the case save from public rumor; and, though he says it would require evidence to remove the impression made upon his mind, still he says he could hear the evidence without bias. There is nothing in the examination as reported to show that he had any fixed or settled opinion about the case; and, under repeated rulings of this court, the challenge for cause was properly overruled. State v. Bryant, 93 Mo. 273, 6 S. W. Rep. 102; State v. Cunningham, 12 S. W. Rep. 376, (not yet officially reported.)

3. It is next objected that the court erred in the admission of evidence given by W. W. Coughran for the state. It will be remembered that the deceased, when shot, got on his horse, and rode up to Mr. Caughron's house. Mr. Coughran met him at the gate. The evidence of Mr. Coughran, to which the objection is made, is this: "I met him, and he said, `I am killed.' He told me he was killed by that low-down Sam Elkins'." After cross-examination,...