State v. Elliott

• Citation: 2 S.W. 411,90 Mo. 350
• Parties: The State v. Elliott, Appellant
• Decision Date: 20 December 1886
• Court: United States State Supreme Court of Missouri

2 S.W. 411

90 Mo. 350

The State v. Elliott, Appellant

Supreme Court of Missouri

December 20, 1886

Appeal from Dallas Circuit Court. -- Hon. Ben. V. Alton, Judge.

Affirmed.

J. B Upton for appellant.

(1) The testimony of Sarah Steele and Mrs. Chasteen was improperly admitted. They testified to no admissions, confessions or declaration against interest. (2) The court erred in admitting the testimony of William Elliott and Anna Eidson taken before the justice of the peace, the witnesses having since died. (3) If at the close of the state's case there was any evidence tending to show that appellant killed Steele, the same evidence made a clear case of self defence and the demurrer to the evidence should have been sustained. (4) Whether failure on the part of the court to charge the jury, as required by Revised Statutes, section 1909, is reversible error, I submit without argument. (5) The eighth instruction given for the state is very erroneous and misleading. It is not an enunciation of the doctrine that no mere words justify an assault, but, aside from the use of the word "gestures," the fair inference is that in cases where death ensues from a striking with a deadly weapon, a different rule of law prevails from that in other cases of assault. But the use of the word "gestures," as used, is equivalent to saying that there can be no justification or excuse for such killing. One man draws and presents a pistol or gun at another, this is a gesture. A gesture is always a prelude to a blow. Any movement of the hand, with or without a weapon in it, is a gesture. See Webster's definition. (6) Defendant's first and second instructions should have been given. There were no equivalent instructions. (7) Manslaughter in the third degree, as defined by Revised Statutes, section 1244 and in the fourth degree, as defined by Revised Statutes, sections 1249 and 1250, should have been defined by proper instructions given to the jury. The evidence both of the state and defendant shows a combat. In all such cases manslaughter must be defined whether defendant so requests or not. State v. Gassert, 65 Mo. 352; State v. Banks, 73 Mo. 592; State v. Wilson, 85 Mo. 134. The fact that defendant objected to an instruction defining one case of manslaughter in the second degree cuts no figure. In this circuit it has been the practice for years for counsel to write instructions and hand them to the court, who indorses them "obj" and passes on them before counsel on the other side sees them at all. Besides objection to that instruction does not carry with it objection to all the degrees or classes of manslaughter to which the evidence is applicable. (8) There was no evidence upon which to base a judgment of conviction.

B. G. Boone, Attorney General, for the state.

(1) The testimony of Sarah Steele and Mrs. Chasteen was properly admitted. Admissions against interest are admissible in evidence. Roscoe's Crim. Evid. [7 Ed.] sec. *38, and cases cited; Whar. Crim. Evid. [8 Ed.] secs. 626, 632; Barbour's Crim. Law [2 Ed.] 463; 1 Moody C. C., 465, 452, 27, 28; State v. Miller, 49 Mo. 505; State v. Carlise, 57 Mo. 102; State v. Hill, 65 Mo. 84; State v. Branstetter, 65 Mo. 149. (2) Copies of witnesses' testimony, given before a justice of the peace, in presence of the accused, may be received in evidence on the trial, on proof of the death of such witnesses. State v. McO'Blenis, 24 Mo. 402; State v. Houser, 26 Mo. 431; State v. Harman, 27 Mo. 120; State v. Carlisle, 57 Mo. 105. (3) The eighth instruction given by the court, as to words of reproach or irritating or provoking gestures, is a correct declaration of law. No mere words of reproach or gestures, no matter how irritating or provoking, will mitigate or extenuate an intentional homicide. 1 Whar. Crim. Law [8 Ed.] sec. 619; 2 Bish. Crim. Law [6 Ed.] sec. 25; State v. Starr, 38 Mo. 270, and authorities cited; Murray v. Boyne, 42 Mo. 472; State v. Brown, 64 Mo. 373; State v. Griffin, 89 Mo. 49; Cushman v. Ryan, 1 Story, 91; Winfield v. State, 3 Green (Iowa) 339; Donnelly v. Harris, 41 Ill. 126; Mitchell v. State, 41 Ga. 527; Com. v. Selfridge, Hor. and Thom. on Self Defense, p. 1; Kunkle v. State, 32 Ind. 220. (4) The tenth instruction given by the court, in regard to defendant's testimony, is correct. State v. McGuire, 69 Mo. 197; State v. Zorn, 71 Mo. 415; State v. Cooper, 71 Mo. 436; State v. McGinnis, 76 Mo. 326; State v. Sanders, 76 Mo. 35; State v. Cook, 84 Mo. 40. (5) There was no evidence on which to base instructions numbered one, two and three asked by defendant. They were not correct declarations of law, and were properly refused. The instructions given by the court covered every phase of the case under the evidence.

Norton, J. Sherwood, J., absent.

OPINION

Norton, J.

The defendant was indicted in April, 1881, in the circuit court of Polk county, for murder in the first degree, for killing one George Steele, on the seventeenth day of June, 1880. The cause was subsequently removed by change of venue to the Dallas county circuit court where a trial was had, resulting in a verdict of murder in the second degree and the assessment of defendant's punishment at ten years imprisonment in the penitentiary.

A reversal of the judgment is sought because of alleged errors committed by the court in the reception of evidence, and in giving and refusing instructions. At the trial the court, over the objection of defendant, allowed Mrs. Chasteen and Sarah Steele to detail conversations had with the defendant soon after the killing of deceased. The object of this evidence was to establish that in these conversations defendant admitted that he killed the deceased, and it is shown by them that defendant, though repeatedly charged with killing the deceased, did not deny the fact. The admission of the evidence is fully justified by the following authorities: State v. Miller, 49 Mo. 505; Wharton Crim. Evid. [8 Ed.] sec. 631; Roscoe's Crim. Evid. [7 Ed.] 53 and 54.

It is next objected that the court erred in admitting the testimony of William Elliot and Anna Eidson, taken before the justice of the peace on the preliminary examination, the said witnesses having in the interim died. This evidence was admissible under the ruling of this court in the case of State v. McO'Blenis, 24 Mo. 402, which was subsequently followed in the cases of State v. Houser, 26 Mo. 431; State v. Harman, 27 Mo. 120; State v. Carlisle, 57 Mo. 102; State v. Able, 65 Mo. 357.

It is next objected that the eighth instruction given on behalf of the state is erroneous. It is as follows "When a person strikes another with a deadly weapon in a manner calculated or likely to produce death no words of reproach or gestures, however irritating or provoking, amount to or constitute any justification or excuse in law for the killing, if death results from such striking." A criticism is made upon the use of the word gestures in the instruction. We cannot see that the use of this word, as applied to the facts in evidence, was in any manner calculated to mislead a jury of ordinary intelligence, and besides this, it is in accord with what is ruled in the cases of State v. Brown, 64 Mo. 367; and State v. Starr, 38 Mo. 270. In the case last cited it is said: "Where there is lawful provocation, the law, out of indulgence to human frailty, will reduce the...