State v. Garrison

• Citation: 49 S.W. 508,147 Mo. 548
• Parties: STATE v. GARRISON.
• Decision Date: 20 December 1898
• Court: Missouri Supreme Court

49 S.W. 508

147 Mo. 548

STATE v. GARRISON.

Supreme Court of Missouri, Division No. 2.

December 20, 1898.

HOMICIDE — VENUE — EVIDENCE — DYING DECLARATIONS — FLIGHT OF ACCUSED — REASONABLE DOUBT — MANSLAUGHTER IN FOURTH DEGREE — COURTS.

1. It is, at any event, not prejudicial error for the state to ask a witness in what "county" the offense was committed, since the right of cross-examination affords means to elicit the grounds for the statement.

2. Where a dying declaration stated that the deceased had no hope of recovery, and he died the next day after he made it, sufficient ground is laid for its admission in evidence.

3. A dying declaration stated that defendant shot the deceased with a pistol at a certain time and place; that the deceased nailed a piece of board on his shanty, and defendant said to him, "You will not stay here to-night," to which he said, "Why?" and defendant replied, "I will kill you," and shot him in the side, and ran; that defendant shot four times at him; that the deceased did not offer or threaten to do anything to defendant just before or at the time of the shooting; that he did not go towards defendant and offer to hit him with the hatchet (as claimed by defendant). Held not irrelevant or fragmentary.

4. Evidence of the escape of defendant from the jail while confined for the homicide for which he is being tried is admissible, though defendant has admitted he committed the offense, from the time of its perpetration.

4. A definition of "reasonable doubt" as "a substantial doubt arising from the evidence, and not a mere possibility of innocence," is not objectionable as depriving defendant of the right of acquittal on a doubt that might arise from the want of, or the insufficiency of, the evidence to warrant a conviction.

6. The courts of the state where the mortal wound is inflicted have jurisdiction of the offense, though the deceased died in another state.

7. In a prosecution for murder, there was evidence that the deceased had a hatchet in his hand, and said to defendant, "You damned ____, I am going to chop your brains out with this hatchet," and advanced on defendant with the hatchet drawn to strike, and then threw it at defendant, whereupon defendant shot and killed deceased. Held error to refuse to instruct as to manslaughter in the fourth degree.

Appeal from circuit court, Platte county; Wm. S. Herndon, Judge.

Frank Garrison was convicted of murder in the first degree, and he appeals. Reversed.

W. H. Roney and J. H. Chinn, for appellant. Edward C. Crow, Atty. Gen., and Sam. B. Jeffries, Asst. Atty. Gen., for the State.

BURGESS, J.

At the December term, 1897, of the circuit court of Platte county, defendant was convicted of murder in the first degree, for having theretofore, in December, 1896, at said county, shot to death with a pistol one Frank Allrick. After unsuccessful motions for new trial and in arrest, defendant appealed. At the time of the homicide the deceased, Frank Allrick, lived on an island in the Missouri river. Prior to that time he and defendant had been working on a dike in the river bottom for one Shillings, under the direction and supervision of one Albert Arnold. Some time before the homicide, defendant had purchased a horse from deceased, for which he agreed to pay him $10 in work. He paid off this debt, with the exception of $1.75, when deceased discharged him, over which they had a quarrel. On the morning of the difficulty, December 17, 1896, but before the homicide was committed, deceased and defendant engaged in a rencounter in which they exchanged shots, but neither of them was injured. Arnold then discharged defendant, and paid him off, after which he asked Arnold if he could not return to work provided he and Allrick made it all right with each other. Arnold acceded to this proposal, and that evening defendant called upon Allrick and renewed friendship with him. It was then agreed between them that Arnold should pay deceased the dollar and seventy-five cents out of defendant's wages as soon as earned. After this arrangement was made, Allrick invited defendant to accompany him home, which he did; and on arriving at the house Allrick secured a hatchet, and was in the act of nailing a board on his house when, the evidence upon the part of the state showed, defendant, without any warning, took a revolver from his pocket, and fired at him. That when the first shot was fired Allrick turned to run, and defendant then fired another shot, which penetrated the left side of the abdomen of Allrick just above the hip bone, and passed through the intestines to the right side of the body, from the effects of which he died, at Leavenworth, Kan., within two or three days next thereafter. Defendant testified in his own behalf as follows: "After I had gone with deceased to his house, and started away, deceased asked me where I was going. I told him I was going back to Mrs. Butler's, and Allrick said, `Go back and stay all night with me, and you won't have to pay that board.' I then said, `I don't propose to pay much board.' I said, `I will go,' and he said, `You damned son of a bitch, I am going to chop your brains out with this hatchet,' and he started at me with the hatchet. I run back a little piece. I put my hand in the pocket I had the pistol, and fired one shot before I got it out. I don't know if it went off before I pulled it out, or about the time; and after I got it raised I fired another shot, and he took towards Mr. Arnold's and Mr. Arnold's work. He throwed the hatchet at me, and I shot about the time it left his hand." The homicide was committed near the state line between Missouri and Kansas, and there was some question as to which state it was committed in. The court instructed for murder in the first degree and for self-defense, and refused instructions asked by defendant for murder in the second degree and manslaughter in the fourth degree. Counsel for defendant raise and discuss a great many points in their brief, but only those which seem to us to be meritorious will be considered.

1. The first assignment of error is that the court erred in admitting and in refusing to strike out the testimony of witnesses for the state Whitely and Dunagan, that the place where the shooting was done was within Platte county. This testimony was admitted without objection from defendant, although he afterwards moved to strike it out. The motion was, however, overruled. But, even if the objection had been timely made, the evidence was not of sufficient importance to justify a reversal of the judgment upon that ground, even though error was committed in admitting it, — which we are unwilling to concede. It is a common practice for prosecuting attorneys to ask witnesses for the state in what county the offense being investigated was committed, and certainly no reversible error is committed in so doing. It would be impracticable to proceed otherwise. Besides, the defendant had the right to cross-examine the witnesses with respect to such statements, had he desired to do so, and in that way ascertain the grounds upon which the statements were made.

2. On the 19th day of December, 1896, deceased made a dying declaration, that was reduced to writing and signed by him, in which he stated that he had no hope of recovery. That Frank Garrison shot him with a pistol about 5 o'clock p. m. on Thursday, the 17th of December, close to his shanty on Stigers island. That he nailed a piece of board on his shanty, and he (Garrison) said to him, "You will not stay here to-night," to which he said, "Why?" and defendant replied, "I will kill you," and shot him in the side, and ran. That Garrison shot four times at him. He also stated that he did not offer or threaten to do anything to Garrison just before or at the time of the shooting; that he made no threats against him; nor did he go towards him or offer to hit him with the hatchet. When the dying declaration was offered in evidence, defendant...