State v. Finley

• Decision Date: 13 November 1912
• Parties: STATE v. FINLEY.
• Court: Missouri Supreme Court

150 S.W. 1051

245 Mo. 465

STATE v. FINLEY.

Supreme Court of Missouri, Division No. 2.

November 13, 1912.

1. CRIMINAL LAW (§ 1169)—APPEAL—HARMLESS ERROR—ADMISSION OF EVIDENCE.

Error in permitting the state to introduce in evidence a plat of the place of the crime, in essentials a duplicate diagram introduced by accused, and so meager as not to mislead the jury or elucidate the evidence, is not prejudicial.

2. HOMICIDE (§ 203)—DYING DECLARATIONS —FOUNDATION.

Proof that decedent had, prior to a visit to him by witness, told third persons that he was "mighty bad, and bound to die," was a sufficient foundation for admission as a dying declaration of his statements to the witnesses.

3. CRIMINAL LAW (§ 1120)—APPEAL—RULINGS ON EVIDENCE—RECORD.

Where the record does not show what a witness would have testified to, the ruling excluding the evidence is not reviewable.

4. HOMICIDE (§ 21)—DYING DECLARATIONS —FOUNDATION—CONDUCT OF TRIAL.

The court, on the offer of a dying declaration, should exclude the jury and alone hear the evidence and the foundation, and determine the

admissibility thereof; and where accused offering a dying declaration of decedent did not ask for the exclusion of the jury the court, on appeal, could not determine whether he was prejudiced by its exclusion.

5. HOMICIDE (§ 215)—DYING DECLARATIONS —ADMISSIBILITY—OPINION OF DECEDENT.

A mere statement by decedent that he was to blame in bringing on the difficulty resulting in `.he infliction of fatal wounds is a mere opinion, and not admissible as a dying declaration.

6. HOMICIDE (§ 339) — APPEAL —" HARMLESS ERROR — ERRONEOUS EXCLUSION OF EVIDENCE.

The exclusion of dying declarations, constituting mere repetitions of the state's testimony proving that decedent brought on the difficulty, is not prejudicial to accused.

7. CRIMINAL LAW (§ 1170½) — APPEAL —" HARMLESS ERROR—LEADING QUESTIONS.

A conviction will not be set aside for error in allowing leading questions, where the witnesses were not hostile to accused nor unduly friendly to the prosecution, and where their answers indicated that they relied on their memories, and that their testimony was not tainted with bias.

8. HOMICIDE (§ 340)—INSTRUCTIONS—HARMLESS ERROR.

Where accused was convicted of manslaughter, though there was evidence justifying a conviction of murder in the second degree, the court's failure to define, in the charge on murder in the second degree, the term "violent passion" was not prejudicial.

9. HOMICIDE (§ 45) — MANSLAUGHTER—ADEQUATE CAUSE.

Mere words do not justify a felonious assault with a deadly weapon.

W. CRIMINAL LAW (§ 785)—TRIAL—INSTRUCTIONS.

Where relatives of decedent and accused were witnesses, an instruction directing the jury, in determining the credibility of the witnesses, to consider their relation or feeling for accused, or any other person or witness connected with the case, was not erroneous as embracing too many persons, and did not affect the substantial rights of accused, within Rev. St. 1909, § 5115.

11. CRIMINAL LAW (§ 1055) — IMPROPER ARGUMENT OF COUNSEL—EXCEPTIONS REVIEW.

Where no exception was saved to the court's failure to rule on objections to remarks of the prosecuting attorney, or to rebuke him, the ruling is not reviewable.

12. CRIMINAL LAW (§ 640)—TRIAL—POWER OF SPECIAL COUNSEL.

Special counsel for the state may be permitted to conduct examination of witnesses for the state.

Appeal from Circuit Court, Pemiscot County; W. S. O. Walker, Judge.

J. J. Finley was convicted of manslaughter in the fourth degree, and he appeals. Affirmed.

Tried in the circuit court of Pemiscot county on a charge of murdering his father-in-law, M. B. Holt, on August 4, 1909, defendant was convicted of the crime of manslaughter in the fourth degree, and appeals.

Both parties resided in the village of Cottonwood Point, in Pemiscot county, and were owners of ferries on the Mississippi river. A fierce rivalry in the ferry business seems to have indirectly brought about the difficulty which resulted in the tragedy.

Defendant established his ferry near one long owned and operated by his father-in-law, the deceased. This displeased deceased very much, and he made many threats against defendant, to the effect that he was going to stop defendant from running a ferry if he had to use rough means to db so. Some of these threats were communicated to the defendant before the killing took place.

It appears that the fare for a round trip across the river at Cottonwood Point was $3.50. On the morning of August 4, 1909, defendant offered to ferry a Elan and wagon for 75 cents; whereupon deceased offered to ferry him for less. The bidding continued until deceased cut the price to 40 cents. Deceased then walked up on the porch of a nearby drug store and sat down. Defendant started up the street with the apparent intention of passing the drug store. Deceased, who was in an angry mood, said to defendant, in the presence of several persons, "You lived in my house a year and paid no rent." To this defendant replied: "Come up to James' store [a few steps distant], and will show you that you received credit for every penny of the rent." Deceased replied, "My wife stole grub from my table last year to feed your family during six months you were loafing." This seemed to anger defendant very much. He called deceased a liar, and walked up on the porch of the drug store and stabbed him with a pocketknife. Deceased made such resistance as he could with his fists, and after he was stabbed, struck defendant with a piece of wood, which he picked up after the fight began.

As to who was the aggressor, the evidence is conflicting. Some witnesses testified that the deceased made no hostile demonstration, except to stand with his fists clenched, until defendant Vegan stabbing him; while others testified that deceased struck defendant with his fist, and ran his hand in his pocket as if to draw a knife, before he was assaulted.

Dr. Sharp, a witness for the state who attended deceased immediately after the stabbing, stated that deceased informed him that at the time he was stabbed he had left his knife with his wife; that this was the first time he had been without a knife in many years; that if he had had his knife at the time of the difficulty the doctor would have had two men to sew up, instead of one.

There is no dispute over the fact that immediately after the quarrel began defendant walked up on the porch of the drug store, where deceased was sitting; but defendant claims that he was starting in the drug store to make a purchase, and did not go on the porch to attack deceased.

The evidence is uniform to the effect that deceased was a quarrelsome, overbearing, dangerous man, while defendant was inclined to be peaceable.

To shorten this opinion, we will give such other facts as are necessary to a full understanding of the case in connection with the conclusion we have reached in reviewing the alleged errors of the trial court.

Ward & Collins, of Caruthersville, for appellant. Elliott W. Major, Atty. Gen., and Charles G. Revelle, Asst. Atty. Gen., for the State.

BROWN, P. J.

(after stating the facts as above). [1] 1. Defendant complains of the introduction of a plat or diagram of the place where the crime was committed. One witness for the state testified that this plat was not exactly correct. It was a very meager plat, and we doubt if it impressed the jury in any manner. In all essential particulars it is a duplicate of another...