State v. Elkins
| Decision Date | 31 October 1876 |
| Citation | 63 Mo. 159 |
| Parties | STATE OF MISSOURI, Respondent, v. J. S. ELKINS, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Webster Circuit Court.
J. O'Day, for Appellant.
Evidence of threats made by the deceased against the accused, although not proven to have been communicated to the prisoner before the killing, are admissible in all cases, where the acts of the deceased in reference to the fatal meeting are of a doubtful character, or where evidence has been given making it a question for the jury whether the killing was done in self-defense or not. (People vs. Stokes, 53 N. Y. 175; Keener vs. State, 18 Ga. 194; Holler vs. State, 37 Ind. 57; Dukes vs. State, 11 Ind. 557; Campbell vs. People, 16 Ill. 17; People vs. Scroggins, 37 Cal. 677; People vs. Arnold, 18 Cal. 476; Lyon vs. Hancock, 35 Cal. 372; State vs. Monroe, 5 Ga. 85; Pritchett vs. State, 22 Ala. 39; State vs. Little, in Sup. Court of Tenn., April term, 1873; Jackson vs. State, do.; State vs. Wright, 9 Yerg. [[[[[Tenn.] 342; State vs. Nelson, 2 Swan, [Tenn.] 262; Carico vs. Comm. 7 Bush [[Ky.], 124; State vs. Zellers, 2 Halst. [N. J.] 220; Murphy vs. Dart, 42 How. [[Pr. R.] 31; State vs. Goodrich, 19 Vt. 116; Riddle vs. Brown, 20 Ala. 412; Pridgen vs. State, 31 Texas, 420; Comm. vs. Young, 6 Bush [[[Ky.] 312; State vs. Keene, 50 Mo. 357; State vs. Sloan, 47 Mo. 604; State vs. Hicks, 27 Mo. 588; Payne vs. Comm., 1 Met. [Ky.] 370; Cases on self-defense [Harrigan and Thompson's] 29 Ala. 14, 416.)
The threats made by Hughes, but not communicated to defendant, were admissible for the purpose of showing the animus with which Hughes was actuated.
The evidence of the violent and dangerous character of Hughes was admissible, to corroborate evidence on part of the defense, that Hughes had made threats against defendant, and that Hughes was the assailant; and for the purpose of proving that defendant had a reasonable ground to apprehend a design on the part of Hughes to kill or inflict great bodily harm on defendant, and that the danger was imminent that such design would be accomplished. Such evidence is held admissible where it qualifies, explains and gives meaning and point to the conduct of the deceased, or where a doubt is created as to whether the homicide was committed from malice or from principles of self-defense.
The nineteenth instruction, given on the part of the prosecution, tells the jury, that if they believe any witness or witnesses were mistaken, the jury are at liberty to disregard the whole of such witness' or witnesses' testimony. It requires no citation of authorities to refute the legal proposition laid down in this instruction.
When the circuit court of Taney county awarded defendant a change of venue to the circuit court of Barry county, the record shows defendant did not appear in court in person. Defendant being indicted for a felony, no step could be taken in the case unless he was personally present in court; therefore the order, awarding the change of venue to Barry county, was null and void.
J. A. Hockaday, Att'y Gen'l, for Respondent.
I. The application for a change of venue was made during the existence of the Acts of March, 1873, which left the whole subject in the discretion of the circuit court. (Sess. Acts 1873, p. 56; State vs. O'Rourke, 55 Mo. 440; State vs. Sayers, 58 Mo. 585.)
II. It was not necessary for the prisoner to be present in court at the application for a change of venue. (Wagn. Stat., 1103, § 15.)
III. The court properly excluded evidence of threats made by deceased against the defendant before the killing, in the absence of proof that such threats were communicated to defendant. (Whart. Hom. § 695; Powell vs. State, 19 Ala. 577; Newcomb vs. State, 37 Miss. 383; People vs. Henderson, 28 Cal. 465; 17 Cal. 316; 16 Ark. 568; 31 Tex. 420; State vs. Gregor, 21 La. An., 473; State vs. Jackson, 17 Mo. 544; State vs. Sloan, 47 Mo. 604; State vs. Keene, 50 Mo. 360; State vs. Harris, 59 Mo. 555; State vs. Hays, 23 Mo. 313.)
IV. The objection that the court refused to admit evidence of the dangerous character of deceased, as a violent and turbulent citizen, cannot avail, as the record shows that a large amount of this sort of evidence was introduced. The evidence on this point excluded was either as to particular acts or the mere opinion of the witness. (State vs. White, 35 Mo. 500.)
V. Instruction No. 14, given by the court, was proper.
The defendant was convicted of murder in the second degree, and has assigned for error in this court various rulings upon the trial in reference to the admission and rejection of testimony, and also in regard to the giving and refusing of instructions.
Before we proceed, however, to notice these points, a preliminary question is raised relating to the action of the court in determining defendant's application for a change of venue, which may be considered. The indictment was found in Taney county, and a change of venue was awarded to the defendant to the circuit court of Barry county, on the ground that the inhabitants of Taney county were so prejudiced against him that he could not have a fair trial in that county. When this petition was filed and the change of venue was ordered, it does not appear that the defendant was in court. Subsequently it is shown that the defendant appeared by attorney and presented his petition to the judge of the Barry county circuit court at Chambers, praying for a change of venue, because the judge was so prejudiced against him, that he could not have a fair and impartial trial. In this last petition it was averred that the judge of the fourteenth judicial circuit was so prejudiced against the defendant, that he could not obtain before him a fair and impartial trial, and therefore the prayer was that the cause be sent to some other circuit than the fourteenth; but the judge awarded the change to Webster county in the fourteenth circuit. Before the case was called for trial in this last county, defendant filed his motion to remove the case to the circuit court of Barry county, or remove the same to some other court where no prejudice existed against him, which motion was by the court overruled.
No error is perceived in the action of the court in its decision upon this subject. It was discretionary with the judge of the Barry circuit court as to what circuit he would send the cause, and when it was duly awarded and transmitted to the Webster county circuit, full jurisdiction was obtained in this last circuit, and hence the court did right in refusing to remand the case or strike it from the docket.
But it is insisted that all the proceedings in regard to a change of venue were nullities, because the defendant appeared by attorney, and the record does not show that he was personally present when any of them were had. In answer to this it is sufficient to say that the personal presence of the accused is only required during the trial. The application for the change of venue was made and granted previous to the trial. It was a favor to him, constituted no step in the progress of the trial, and it was not necessary that he should be personally present.
On the trial defendant offered to prove that about ten days before the killing took place, and on that very day, and at other times within ten days, the deceased swore that he would kill the defendant--that defendant could not live in the county. The court refused to permit the defendant to prove these threats, because he could not prove that they were communicated to him previous to the killing.
When threats by the person killed should be admitted in evidence or rejected, is a question involved in a great deal of doubt and uncertainty. If they have been made a long time antecedent to the commission of the act, they may be not only valueless but entirely inadmissible. The relations of the parties may have since entirely changed, and in the intervening time the person making them may have wholly abandoned any previously conceived intention of harming the person against whom they were uttered. It is impossible to lay down any general rule on the subject. Their relevancy, admission or rejection, depends materially upon the circumstances surrounding each particular case. If the accused was the aggressor, then evidence of threats by the deceased can be of no importance in furnishing exculpatory evidence in his favor, for it is only when an attempt is made to carry out or put in execution a threat by the person making it that it becomes material and furnishes grounds of justification for the action of the defendant. If the threats are so recent as to afford a presumption that danger may be apprehended, they are calculated to put the party against whom they are made on his guard, and will frequently authorize a line of conduct by him that would otherwise be unjustifiable. In some instances uncommunicated threats are not only...
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