State v. Evans

• Decision Date: 31 October 1877
• Citation: 65 Mo. 574
• Parties: THE STATE v. EVANS, APPELLANT.
• Court: Missouri Supreme Court

65 Mo. 574

THE STATE

v.EVANS, APPELLANT.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Dunklin Circuit Court.--HON. R. P. OWEN, Judge.

S. M. Chapman for appellant.

1st. Without attempting to controvert the doctrine that to make declarations admissable as res gestæ, they must be contemporaneous with the main fact, yet it is equally true that to be contemporaneous they need not be precisely concurrent in point of time. If they tend to illustrate the character of the act, and are made at a time so recent as to reasonably preclude the idea of deliberate design, they are admissible, (Starkie's Ev. Sharswood's Ed. 89); Durant v. People, 13 Mich. 351; Marr v. Hill, 10 Mo. 320; Wadlow v Perryman, 27 Mo. 279; Hanover R. R. Co. v. Coyle, 55 Pa. St. 396; Brownell v. Pacific R. R. Co., 47 Mo. 244; Harriman v. Stowe, 57 Mo. 93; State v. Sloan, 47 Mo. 604; Travelers' Ins. Co. v. Mosley, 8 Wall, 397;Bishop Crim. Law (5th ed.) §187-9; Bishop Stat. Crimes §132.

2nd. When the circumstances accompanying a homicide are in evidence, the question whether the crime is murder or manslaughter is to be determined from all the facts and circumstances in evidence, and not from any artificial presumption drawn from the mere fact of killing; and where there is reasonable doubt as to whether the offense is murder or manslaughter, the verdict should be for the lower offense. Maher v. The People, 10 Mich. 212; Gooall v. State, 1 Oregon 333; Whart. on Hom. §§ 499, 660, 664; U. S. v. Mingo, 2 Curtis C. C. 1; U. S. v. Armstrong, 2 Curt. C. C. 446; Commonwealth v. Hawkins, 3 Gray 463; State v. Newton, 4 Nev. 410; Stokes v. The People, 53 N. Y. 164; Mitchell v. State, 5 Yerg. 340; Davis v. State, 10 Ga. 101; Whart. on Hom. (2nd ed.) § 194; Coffee v. The State, 3 Yerg. 283; Regina v. Maugridge, Kelyng 122; 4 Bl. Com. 194, 195.

3d. It was error to instruct the jury upon the law of murder in the second degree, as there was no evidence tending to establish the prisoner guilty of that offense--if guilty of any offense, it was of some other grade of homicide than murder in the second degree. The evidence tends only to prove murder in the first degree together with some of the grades of manslaughter. People v. Shehan, 49 Barb. 217; State v. Phillips & Ross, 24 Mo. 486-490; State v. Shoultz, 25 Mo. 153; State v. Joeckel, 44 Mo. 235.

4th. It is sufficient to justify one, whose life has been threatened by another, in defending himself with a pistol, that the danger be reasonably apparent. It is not necessary to the right of such defense that the jury should find that the person who had made the threats was, in fact, making any effort to carry out such threats. Whart. on Hom. 2d ed. §§ 493-499; 1st Bishop crim. law, 5th ed. § 305; Wharton criminal law, 7th ed. § 1019; Campbell v. People, 16 Ill. 17; State v. Sloan, 47 Mo. 604; Logan v.Commonwealth, 2 Wright (Pa.) 265; State v. Harris, 1 Jones (N. C.) 190; Selfridge's case, 3, 4; Schnier v. People, 23 Ill. 28; State v. Collins, 32 Iowa, 36; Young v. Commonwealth, 6th Bush (Ky.) 312; Pond v. People, 8 Mich. 150; Patten v. People, 18 Mich. 314; Carroll v. State, 23 Ala. 28.

5th. It was the duty of the court to have defined to the jury, all the different degrees of homicide which the testimony tended to prove, that the jury might judge intelligently as to the grade of the crime, if any, to be imputed to the prisoner; and it was error to confine them, by instructions, to the consideration of murder only, as the evidence clearly tended to prove the lower degrees of manslaughter as well as murder. Crawford v. State, 12 Ga. 142; State v. Bryant, 55 Mo. 79; State v. Matthews, 20 Mo. 57; State v. Jones, 61 Mo. 236; State v. Schoenwald, 31 Mo. 158.

6th. Although the evidence be only cumulative, yet if it be of a character so important as likely to change the verdict, a new trial should not be refused.

7th. The evidence, as contained in the record, does not warrant the finding of the jury. While courts will not lightly disturb the verdict of a jury, even in a criminal case, on a mere question of the weight of evidence, yet when there is no evidence to support the finding, or where it is apparent that the judgment ought not to stand, the court will look into the record to see if the verdict is warranted by the facts proven, and, where it is not, will award a new trial. Mansfield v. State, 41 Mo. 470; State v. Burnside, 37 Mo. 346; State v. Packwood, 26 Mo. 364; State v. Bird, 1 Mo. 585; Davis v. State, 2 Humph. 439.

J. L. Smith, Attorney-General, for the State.

1st. Statements by a defendant as to the condition of his mind just before committing a crime are inadmissible in his favor; Green v. State, 13 Mo. 382; nor are they part of the res gestæ; State v. Ware, 62 Mo. 598. 2nd. The minutes of the testimony of one Baker, taken on a former trial, were not signed by the witness, no sworn to by him, and were simply hearsay testimony and inadmissible. Chouteau v. Searcy, 8 Mo. 733.

3d. If the defendant killed the deceased, the law presumes it to be murder, in the absence of proof to the contrary. State v. Underwood, 57 Mo. 40.

4th. The instruction given on the part of defendant, presented the law of justifiable homicide in a light most favorable to defendant, and there is no error in refusing those refused. State v. Harris, 59 Mo. 550; State v. Sloan, 47 Mo. 604; State v. O'Connor, 31 Mo. 389; State v. Hicks, 27 Mo. 588; State v. Philips, 24 Mo. 475.

5th. The granting of a new trial, on the ground of newly-discovered evidence, rests in the sound discretion of the court trying the case. M. & M. Insurance Co. v. Curran, 45 Mo. 142.

NORTON, J.

Defendant was indicted in the circuit court of Dunklin county for murder in the first degree, for the killing of one William R. Rankins, by shooting him with a pistol. He was put upon his trial at the May term, 1876, of said court, and found guilty of murder in the second degree, and his punishment fixed at ten years imprisonment. The alleged errors which we are asked to review, are the action of the court in giving and refusing instructions, the admission and rejection of evidence, and in overruling a motion for a new trial.

1. MURDER: evidence; res gestæ.

On the trial, defendant offered to show by Rice, a witness, that, about one hour before the killing, when Rankins passed the wagon in which defendant and witness were riding, defendant stated to witness that “Rankins had been following him up for a long time to kill him; that he was in fear of his life when he saw Rankins.” This witness was also asked if he knew of defendant's going to mill that day, with reference to leaving the county; and he was also asked if he had heard defendant say, on that day after Rankins passed, and within an hour of the difficulty, that he was going to leave the country to avoid a difficulty with Rankins?” The evidence sought of this witness, we think, was inadmissible, not being a part of the res gestæ. Rankins, so far as the evidence shows, passed the wagon in which defendant and witness were riding, no words having been spoken either by defendant, Rankins or the witness. These declarations, if made by defendant, were entirely disconnected from the shooting of Rankins; they constituted no part of the res gestæ and were not made contemporaneously with the killing, which occurred about an hour after the remarks are alleged to have been made. A party cannot be allowed to give his own declarations in his favor, and thus manufacture evidence for himself. Declarations, to be a part of the res gestæ, must have been made at the time the act was done, which they are supposed to characterize, and calculated to unfold the quality of the facts they were intended to explain, and so to harmonize with them as obviously to constitute one transaction. Starkie Ev. 88; Green v. State, 13 Mo. 382.

2. EVIDENCE: written statement of witnesses.

It is urged that the court erred in not permitting the written statement of one Baker, which had been taken at a former trial, to be read as evidence. It appears that Baker had been in court till after the close of the evidence on the part of the State. We can perceive no principle on which this evidence should have been received. So far as it appears from the record, it was not preserved or written down by any one authorized by law so to do, nor was it signed by the witness. It does, however, appear that Baker was present at the trial till after the State closed its case, and, although it is stated that he was absent when the written statement was offered in evidence, it does not appear that the process of the court was invoked to compel his attendance, nor that it would have been ineffectual if it had been invoked.

3. PRESUMPTION FROM KILLING: instruction.

It is insisted that the court erred in giving instructions numbered two, three, four and five. In number two the court told the jury that “if defendant killed deceased by shooting him with a pistol, the law presumes it is murder, in the absence of proof to the contrary.” In the case of the State v. Hayes, 23 Mo. 320-3, a similar instruction to the above was directly passed upon and affirmed. In that case the jury were told that if Hayes killed deceased with a spade, the law presumed it was murder, in the absence of proof to the contrary. In reviewing the instruction, the court observes “that it is literally correct, nor can we see how the jury could be misled by it. If Hayes killed deceased with a spade, the law presumes it is murder, in the absence of proof to the contrary, and it devolves on defendant to show from the evidence in the case, to the reasonable satisfaction of the jury, that he was guilty of a less crime, or acted in self-defense. The court did not fix the degree of murder; it did not say murder in the first or second degree.” It was urged in that case, as it is in this, that, as murder in the first degree had been mentioned by the court, by saying murder, without mentioning any degree, the jury would...