State v. Fitzgerald
| Decision Date | 19 November 1895 |
| Parties | The State v. Fitzgerald, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis Criminal Court. -- Hon. Henry L. Edmunds Judge.
Affirmed.
McDonald & Howe for appellant.
(1) The court erred in refusing to sustain defendant's motion praying the production in court of the written statement made by defendant at the time of his arrest. (2) The court erred in admitting testimony of the witnesses Scheibe and Behland for the state, relating to the alleged statements of defendant prior to the shooting. (3) The court erred in admitting the testimony of Charles Vincent relative to his hearing reports, such evidence amounting merely to the opinion of the witness. (4) It was error to allow the witness Albert Naessens to return to the stand after having testified, and after he had talked with the other witnesses and the attorneys for the state, for the purpose of changing his testimony. (5) It was error to allow witness Sergeant O'Donnell to give his opinion about the cap and the course of the bullets and the bullet holes in the ceiling. (6) It was error for the circuit attorney to refer to the supreme court passing upon the case, and to say in the presence of the jury while examining witness O'Donnell about the cap, "This cap won't speak to the supreme court if the case ever gets there." State v Kring, 64 Mo. 591. (7) The court erred in not sustaining defendant's demurrer to the state's evidence. (8) The court erred in allowing the circuit attorney to question the witness Mrs. Albintz as to whether she had not previously told Sergeant O'Donnell that she had taken a pistol away from defendant some time prior to the killing. (9) The court erred in refusing to allow defendant to introduce the written statement made by him to detective Desmond or to interrogate the witness in relation thereto. (10) There was error in the refusal to allow defendant to introduce testimony of witnesses Mrs. Guion and Mrs. Montgomery relative to deceased making threats to commit suicide and the reasons therefor. Com. v. Trefethen, 31 N.E. 961; State v Ludwig, 70 Mo. 412; Pearson v. State, 16 S.W. 726; Boyd v. State (14 Lea), 82 Tenn. 161; Blackburn v. State, 23 Ohio St. 146. (11) The court erred in commenting upon defendant's evidence to the effect that, "The court has grave doubts as to the admission of the testimony offered as to threats by deceased to commit suicide, but has allowed that to go in," thereby discrediting and practically destroying the force and value of defendant's entire testimony. Travelers' Ins. Co. v. Sheppard, 85 Ga. 751; Persons v. State, 16 S.W. 728; State v. Findley, 101 Mo. 217. (12) The court erred in refusing to permit defendant to introduce the testimony of witness John Stover relative to deceased carrying a pistol. (13) The court erred in permitting the circuit attorney to examine defendant about matters not referred to in his examination in chief. State v. Graves, 92 Mo. 510; State v. Chamberlain, 89 Mo. 129; State v. Elmer, 115 Mo. 401; State v. Patterson, 88 Mo. 88; State v. McLaughlin, 76 Mo. 320. (14) The court erred in its instructions to the jury as to murder in the first and second degrees. State v. Jones, 20 Mo. 64; State v. Ellis, 74 Mo. 219; State v. Nueslein, 25 Mo. 111; State v. Dunn, 18 Mo. 423. (15) The court erred in not instructing the jury as to manslaughter. State v. Ludwig, 70 Mo. 414; R. S. 1889, sec. 3466. (16) It was error for the circuit attorney to state in his argument that: "Nobody knows what was troubling the defendant, except Anna Naessens, and she is dead and can't tell it, and James Fitzgerald and his counsel and they won't tell it." State v. Mahley, 68 Mo. 315; State v. Graves, 95 Mo. 315; State v. Moxley, 102 Mo. 374; Dawson v. State, 24 S.W. 414; Nun v. People, 123 Ill. 333; People v. Evans, 72 Mich. 367; State v. Elmer, 115 Mo. 403. No apology by the counsel nor charge by the court could be deemed to have certainly averted the consequences which might naturally result or have cured the error. State v. Ahern, 54 Minn. 195. (17) The court erred in refusing to permit the defendant's counsel to illustrate his argument by reference to well known cases similar to the one under discussion, or to use a newspaper article or passages from text-books by way of illustration. Palmer v. People, 28 N.E. 130; Newman v. Com., 5 Cent. Rep. (Pa.) 497; 2 Encyclopedia of Pleading and Practice, 741; Ins. Co. v. Cheever, 36 Ohio St. 209. (18) It was radical error for the circuit attorney to insist upon the jury taking with them to their rooms all the articles of evidence introduced in the case. (19) The court should have sustained defendant's motion for a new trial.
R. F. Walker, attorney general, and C. O. Bishop for the state.
(1) It was urged in the argument upon the motion for new trial in the court below that there should have been an instruction for manslaughter in the first degree, upon the theory of "assisting at a self-murder;" but there was no evidence upon which to base such an instruction. State v. Avery, 113 Mo. 501; State v. Punshon, 124 Mo. 448. (2) There was no error committed in refusing to compel the state to produce the written statement of appellant made to the police department several days after the homicide. First. It was a self-serving statement, and, therefore, wholly incompetent as evidence for the defense. Second. It was unreasonable and absurd to claim that appellant "could not safely or fully make his defense" without the production in court of his own voluntary statement regarding the homicide made several days after the killing. Third. The statement was eventually produced before the jury and appellant had the full benefit of it. Fourth. The point is not preserved in the motion for new trial. State v. Alred, 115 Mo. 473; State v. Gilmore, 110 Mo. 1; State v. Noeninger, 108 Mo. 166. (3) The testimony of Scheibe and Behland as to appellant's threats of killing "someone" and himself afterward, made a few hours before the homicide and upon the same premises, was perfectly competent, even though the threats were vague and indefinite as to who the "someone" was. State v. Guy, 69 Mo. 430. The principle upon which such testimony is competent is fully discussed and doctrine stated in State v. Crawford, 99 Mo. 74. (4) The testimony of Vincent as to hearing the reports of discharged firearms, four in number, at the time and place where the shooting occurred, was competent in every view of the case. Hearing the shots fired was a part of the res gestae. Moreover, there is no suggestion in the objection as to why the testimony should not have been admitted. Merely saying that it was "incompetent and immaterial" is not enough. The trial court has the right to know the specific ground upon which objection is made to testimony. State v. Adams, 108 Mo. 208; State v. Kennade, 121 Mo. 405. (5) The exception to the court's overruling appellant's demurrer to the evidence is not preserved in the motion for new trial. State v. Harvey, 105 Mo. 316; State v. Mitchell, 98 Mo. 657; State v. Reed, 89 Mo. 168. A case should not be taken away from the jury if there is any evidence to sustain the issues. (6) The court did not err in refusing to permit Wm. Babelon to testify that she would not believe witness Scheibe under oath. State v. Rush, 77 Mo. 519. (7) The state is not bound by the declarations of deceased when not a part of the res gestae, and unaccompanied by any act of deceased which they might characterize or explain, but are only mere naked declarations offered as original evidence. State v. Punshon, 124 Mo. 448; Seibert v. People, 143 Ill. 571. (8) The cross-examination of the appellant was strictly in line with the ruling of this court in State v. Avery, 113 Mo. 475. (9) The remark of Mr. Zachritz as to what the appellant did not testify about when he was upon the stand was promptly checked by the court, the remark withdrawn, and the jury told they must not consider it. Thus the error, if any, was cured. State v. Graves, 95 Mo. 510 (516-517). (10) It is a matter resting in the discretion of the court whether counsel shall be permitted to read law books to the jury. State v. Klinger, 46 Mo. 226; Williams v. Railroad, 126 N.Y. 104.
From a conviction of murder in the first degree by shooting Annie Naessens to death with a pistol the defendant has appealed to this court. The murder is alleged to have occurred on the twenty-ninth day of November, 1893, in the city of St. Louis, Missouri, where the trial was had.
Deceased at the time of her death was about eighteen years of age and had been engaged as a domestic in the family of one Albintz, a saloon keeper who was engaged in business at the southeast corner of Broadway and Quincy streets, in Carondelet in said city. Albintz with his family resided over the saloon, where deceased roomed. Defendant was a suitor of the girl, had been acquainted with her for about a year, called on her frequently at her home in the south-eastern part of said city, and also at Albintz's while she was living there. They were engaged to be married.
On the day of the homicide defendant was not engaged in any employment and spent a greater part of the day and especially the evening in the saloon drinking, and in the evening seemed to be somewhat under the influence of intoxicants. A witness for the state by the name of Scheibe testified that during the evening defendant said to him, "Come on, Frank, let's have a drink," remarking at the time, "This may be the last drink you will have with me," and on being asked by the witness why, he replied, "Never mind why."
Another witness for the state, Joseph Behland, testified that during the same...
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