State v. Evans

• Decision Date: 05 November 1894
• Citation: 28 S.W. 8,124 Mo. 397
• Parties: STATE v. EVANS.
• Court: Missouri Supreme Court

28 S.W. 8

124 Mo. 397

STATE v. EVANS.

Supreme Court of Missouri, Division No. 2.

November 5, 1894.

PROSECUTION FOR MURDER — DYING DECLARATIONS — ADMISSIBILITY — INSTRUCTIONS — DEGREE OF CRIME — REMARKS OF COUNSEL.

1. Where deceased stated that he was "shot to death," his declarations made at the time are admissible, though he also asked that a physician be sent for, as such wish, under the circumstances, shows merely a desire to be relieved from pain.

2. Though the declarations of deceased are inadmissible at their first utterance, yet if he, being subsequently conscious that he is dying, reaffirms them, they are admissible as dying declarations.

3. That the declarations were made under a sense of impending death may be shown by the conduct of deceased, and the surrounding circumstances.

4. A statement by deceased, just before his death, that he "forgave" defendant, who had shot him, is inadmissible.

5. The mere fact that defendant, in "expectation" of an attack, armed himself, and knowingly went into the vicinity of deceased, who had threatened his life, did not deprive him of the right to take life in self-defense.

6. An instruction that, if the jury find that defendant intentionally killed deceased with a loaded pistol, the law presumes that such killing was murder in the second degree, in the absence of proof to the contrary, and it devolves on defendant to adduce evidence to repel this presumption unless it is repelled by evidence adduced by the state, is proper. State v. McKinzie, 15 S. W. 149, 102 Mo. 620, disapproved.

7. On a prosecution for murder, the prosecuting attorney cannot, in his argument, state to the jury, in the absence of instruction thereon, what is necessary for defendant to prove under a plea of self-defense.

Appeal from circuit court, Cooper county; D. W. Shackleford, Judge.

Riley Evans was convicted of murder in the second degree, and appeals. Reversed.

Draffen & Williams and John Cosgrove, for appellant. R. F. Walker, for the State.

SHERWOOD, J.

This appeal questions the correctness of certain rulings made by the lower court during the trial of Riley Evans on a charge of murder in the first degree, which trial resulted in his conviction of the second degree of that crime, and the assessment of his punishment at imprisonment in the penitentiary for the term of 25 years. On the trial it was developed by the evidence that Peter Fine, the deceased, rented a farm owned by defendant's wife; both defendant and deceased, and their families, living on the farm, and occupying portions of the same dwelling house. The term of Fine had about expired, and he had been informed by defendant that he wanted possession of the farm on the expiration of the year for which it was rented to him. This announcement displeased Fine, and gave rise to altercations between the parties, and threats on the part of Fine towards defendant; so much so, that, several days before the homicide occurred, defendant felt it to be necessary to take steps, and secure the arrest of Fine, in order to have him bound over to keep the peace. His arrest greatly enraged Fine, and he made threats of taking defendant's life unless he got off the place. etc.; these threats — some of them — extending even down to the morning of the day on which Fine was shot, the 25th of October. On the morning of that day, having been freshly threatened, defendant, for his own protection, deemed it necessary to procure a pistol, which he did by riding to Boonville for that purpose, and, having loaded the weapon, returned home with it in his pocket, reaching there about noon. After putting his horse up in the stable, he went to his house, and, after some talk with his wife about domestic affairs, went down for some corn into the cornfield, where the tragedy which forms the subject of the present prosecution occurred. Adeline Fine, sister of Peter Fine, stated that hearing a niece of hers (Mary Fine) halloo, "Evans has shot papa!" she went out of the house, down into the cornfield, and there found her brother lying down, in a drawn-up position, by a fence some 50 yards from the house, she being the first one to arrive on the ground. She relates the conversation that occurred between herself and brother in this way: "I said, `How is this?' and he says, `I am shot to death;' and I said, `You and Evans had a fuss?' and he says, `No, we have had no fuss;' and I said to him, `Had we better have a doctor?' and he said, `Send for Dr. Cockran.'" Being asked what else her brother said in reference to the shooting, she said: "Well, he just said he was shot to death and that `I can't live,' and that there was no trouble at all. I asked him if there was any fuss, and he said, `Nothing but kind words.' He said Evans came up to him, and they spoke something about the weather." She further stated that the shooting happened about 1 o'clock, and that her brother lived, after being shot, about 1 hour; that just before the shooting, some 15 or 20 minutes, she saw defendant pass the door, and go to the well, and get a bucket of water, and return to the house; that the wife of deceased reached the fatal spot a few minutes after she did, and witness Broyles, shortly after that; that they placed her brother on some quilts, and he died in the field where he lay when found. Mrs. Fine, the widow of deceased, testified, in substance, that so soon as her daughter hallooed, as before stated, she started to go to her husband. When she reached him, which she did after her sister-in-law did, when being asked to state what her husband told her in reference to the shooting, she replied: "I said to him (Mr. Fine) `Tell me all about it.' He says: `There is nothing to tell; nothing but kind words spoken. He spoke about the weather. I turned, and he shot me. I hallooed for you, and you didn't hear, and I started to the house. And that is all there is to tell.'" She further stated that her husband lived some three-quarters of an hour after this conversation, and that he died there on the ground. Broyles, who lived not quite a half mile from the scene of the killing, testified, in substance, that he arrived at the locality some 15 or 20 minutes after the shooting; saw Fine lying down on the ground, on some quilts which had been prepared for him, where he died; that he made no statement about the shooting after he arrived; that some one else asked Fine where the shooting took place, when the latter, being feeble, and just able to speak pointed down in the field, west of where he was lying. This witness then speaks of going down into the field with others, and seeing tracks pointed towards a sack where Fine, it seems, had been gathering corn at the time of being shot. There were a few ears of corn in the sack, and there was the mark of a bullet on a cornstalk. Street testified: That he was constable of Saline township, Cooper county. That he saw defendant at B. F. Bedwell's, October 25, 1893. Defendant told him he had shot Mr. Fine, and that he was witness' prisoner. That he started to Boonville with defendant as soon as the magistrate made out the commitment. That, on the way to Boonville, defendant said that he was afraid of deceased; that he had nothing at home to protect himself, and went to Boonville, and got a pistol; that, when he reached home, dinner was not ready, and he went to the barn to get some chicken feed, and saw deceased in the cornfield, gathering corn, and he went to see if he was dividing it right, and spoke to deceased, and said, "It is a fine day, but a little cloudy," and deceased turned around and said, "What are you doing here? you son of a bitch," and defendant said, "I could not stand that, and I went to shooting." That he asked defendant if deceased started at him, and he said, "No, but he turned around, and looked at me like a lion." That was about all he told witness, and was exactly what he told him. Further, he stated that defendant told him that he was afraid Fine would kill him; that he had threatened him repeatedly; and told him about trouble they had in the road; that he met Fine in the road, and Fine ran him through a wire fence; that Fine rode his horse in front of him in the road, and would not allow him to pass; that deceased was on horseback, and that he was on foot, and he was obliged to run through a barbed-wire fence, and go home through a cornfield to get away from Fine, who told him, if he swore certain things against him, he would kill defendant; and that he killed Fine because of the threats before mentioned. Dr. Cockran, introduced as a witness, testifies that there were gunshot wounds in Fine's body and limbs, — one through the center of his arm, and one above the left nipple, — both caused by the same bullet. Another wound was made by a bullet which entered between his ninth and tenth ribs, about midway of his back, some 2½ inches from the spinal column, ranging through him, and lodging under the shoulder blade, which wound caused his death, etc. Arn, a gunsmith, testified to having sold defendant a pistol on the morning of the homicide. This closed the testimony on the part of the state.

Testifying in his own behalf, defendant stated: That his wife owned the farm on which he and Fine were living; that he and his family occupied a part of the house, and Fine and his family occupied the other part; that a few days before the shooting he and deceased met at the stable on the place, and deceased asked him if he was going to the rally, and acted as if he was in good humor, but he saw that he was not. He told deceased that he was not going, and deceased then spoke to him very short, and said, "`I will give you to-day to get off this place.' He said, `You have served the warrant on me, and I am not going to let you live until the trial comes off, and I will give you to understand you must leave this place to-day.' This was at the stable, the morning of the shooting. When I went to feed my mare and mules, I met him about...