State v. Goddard

• Decision Date: 23 April 1901
• Citation: 162 Mo. 198,62 S.W. 697
• Parties: STATE v. GODDARD.
• Court: Missouri Supreme Court

62 S.W. 697

162 Mo. 198

STATE v. GODDARD.

Supreme Court of Missouri, Division No. 2.

April 23, 1901.

HOMICIDE — FORMER CONVICTION — DISMISSAL OF PROSECUTION — SECOND INDICTMENT — CHANGE OF VENUE — JURISDICTION — SPEEDY TRIAL — DUE PROCESS OF LAW — NEW TRIAL — EFFECT OF FORMER CONVICTION — PLEA IN ABATEMENT — FAILURE TO IMPANEL JURY — SELF-DEFENSE — TRIAL — EVIDENCE — ADMISSIBILITY — HEARSAY — IMPEACHMENT — INSTRUCTIONS — APPEAL — SUFFICIENCY OF OBJECTIONS — AUTHORITY OF JUDGE.

1. The voluntary dismissal of a prosecution for homicide by the prosecuting attorney after the granting of a change of venue and the finding of a second indictment is not a bar to a prosecution under the second indictment, either at common law or under the constitution and statutes.

2. Under Rev. St. 1899, § 2522, providing that, if there be two indictments against the same defendant for the same offense, the first shall be deemed to be suspended by the second, a second indictment for homicide may be found, though a change of venue of the case under the first indictment has been taken to another county.

3. The jurisdiction to try a defendant charged with murder under a second indictment is not defeated by the fact that the first indictment therefor has not been formally quashed.

4. Where the trial of a defendant for homicide is set for a certain date, and a second indictment is found against him five days prior thereto, a voluntary dismissal of the first prosecution by the prosecuting attorney does not show a denial of a speedy trial, within the constitution and laws, when no want of diligence is shown in bringing defendant to trial under the second indictment.

5. Under Const. art. 2, § 23, prohibiting a person from being twice placed in jeopardy for the same offense, but providing that a reversal of a judgment of conviction for error of law shall not prevent a new trial on a proper indictment, a prisoner convicted of murder in the second degree, under an indictment for first-degree murder, which judgment is reversed on appeal; may be retried under a second indictment, charging murder in the first degree.

6. Such new trial for first-degree murder is not a violation of the fourteenth amendment of the United States constitution, requiring trial by due process of law, since the state has a right to impose conditions for the granting of new trials.

7. Where the only question presented by defendant's plea in abatement and motion for discharge in a homicide case is a question of law, and a jury is not asked for, it is not error to determine such plea and motion without impaneling a jury.

8. An objection, in a homicide case, to a certain question asked a witness, that the defendant objects to any conversations with a certain

person as being hearsay, and an exception on its being overruled, is not sufficient to raise the question of the admissibility of similar testimony called for in a subsequent question to the same witness.

9. Where defendant in a prosecution for homicide introduces evidence that the wife of deceased said, when she heard the fatal shot, that she was afraid that deceased was shot, he cannot object to evidence of the statements of the daughter of deceased, made at the same time, that her father was shot, though such declarations tend to show a guilty knowledge of the wife and daughter, since the defendant first called out such evidence.

10. An objection, after the close of the testimony of a witness in a homicide case, to all the evidence of the witness as being immaterial and hearsay, is not sufficient to authorize a review of the evidence so admitted.

11. The exclusion of evidence of a witness that she saw the hat and cuffs of deceased in a certain room, as being hearsay, is not error, in a homicide case, when the evidence of the witness shows that she had no personal knowledge of their ownership, but was told by the daughter of deceased that they belonged to him.

12. Where the defendant, in a homicide case, testifies to an estrangement between himself and deceased, the refusal to allow him to state the cause of such estrangement is not ground for reversal, in the absence of an offer to show a different reason therefor than that shown by the state.

13. Where ill feeling existing between defendant and deceased is shown in a homicide case, it is not error to refuse to allow the defendant to state the cause therefor, since the ill feeling is the material fact to be established.

14. Where defendant testifies as to a struggle, and that he shot deceased in self-defense, and does not show that deceased was attempting to use a weapon, the state may show that deceased was a small, weak man, and nearly blind, as tending to negative self-defense.

15. Where the defendant in homicide testifies that he has not been anywhere with the wife of deceased since the killing, which is corroborated by the wife, evidence of their being together after such time is admissible for the purpose of impeachment.

16. Where there is evidence that the defendant in homicide was criminally intimate with the wife of deceased before the killing of the latter, evidence showing a continuation of such relations thereafter is admissible as corroborating the evidence showing the intimacy existing prior thereto, and as tending to show a motive for the crime.

17. Where the defendant in homicide offers to introduce certain papers, which are objected to, and the court reserves its ruling thereon, and there is no exception taken thereto, and the record does not show a ruling thereon, the failure to rule that the evidence is admissible is not reversible error, in the absence of a future offer and refusal to admit the evidence, since the defendant should insist on a ruling thereon.

18. The refusal of an instruction on self-defense in a homicide case, that a person whose life has been threatened by another is not bound to quit his business to avoid a meeting with such person, is not erroneous, when defendant was not pursuing his ordinary vocation in life when he met and killed deceased.

19. The defendant in homicide had seen the pistol of deceased taken from him before the fatal affray, and testified that he saw no weapon in the hands of deceased when the fatal shot was fired. The defendant was strong and athletic, while deceased was small, weak, and nearly blind. Held, that the refusal to instruct that defendant could not be convicted if he had reasonable cause to apprehend the intention of deceased to take his life or do great bodily injury, and an immediate danger of such designs being accomplished, was not error, when considered in connection with the evidence and an instruction that defendant should be acquitted if he had reasonable grounds for apprehending and believing that the danger of death or great bodily injury was imminent, but that the belief alone was not sufficient unless there was a reasonable cause therefor.

20. Where defendant was convicted of murder in the second degree, error in instructing as to manslaughter, which was not warranted by the evidence, was harmless.

21. Where a judge, who is disqualified to try a homicide case, sends the cause to another judge, but a change of venue is taken, and the indictment is then quashed on the finding of a new indictment in the original county, the disqualified judge is not required to again send the cause to the same judge, but may send it to another judge.

22. The fact that a judge is disqualified to try a homicide case does not prevent him from receiving the indictment from the grand jury, and sending the cause to another judge for trial.

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

Jefferson D. Goddard was convicted of murder in the second degree, and he appeals. Affirmed.

On the trial of the cause the defendant requested the court to give the following instructions:

"(1) The court instructs the jury that a person whose life has been threatened by another is not bound to quit his business, but may pursue his ordinary occupation; and if he meets with the person who has threatened him, and such person makes an attack upon him in such manner as to show an intention to do the threatened party great personal injury, and accompanied, apparently, with the present means or ability of accomplishing his intentions, then the threatened party, if he believes himself in immediate danger, has a right to repel such assault or to avert such threatened danger, even unto taking the life of such party."

"(3) The court instructs the jury that it is not necessary, in order to authorize an acquittal in this case, that the jury believe the defendant was actually in danger of being killed by, or sustaining great personal injury at the hands of, the deceased. It is sufficient if, under all the circumstances surrounding the parties at the time, the defendant had reasonable cause to apprehend a design on the part of the deceased to take his life or to do him great personal injury, and there was reasonable cause for defendant to apprehend immediate danger of such design being accomplished. The defendant had a right to act on appearances. He was not required by the law to wait until the fatal blow was about falling upon him before defending himself."

I. N. Watson, W. S. Pope, F. P. Walsh, and F. E. Luckett, for appellant. Edward C. Crow, Atty. Gen., for the State.

GANTT, J.

On the 2d day of April, 1897, at the Woodland Hotel, in Kansas City, Jackson county, Mo., Jefferson D. Goddard shot and killed Frederick J. Jackson. On the 20th day of April, 1897, the grand jury of Jackson county returned an indictment charging Jefferson D. Goddard with murder in the first degree. After a mistrial, defendant was, on a second trial in the Jackson county criminal court, before Hon. George F. Longan, special judge, convicted of murder in the second degree, and his punishment fixed at imprisonment in the penitentiary for the term of 16 years. On appeal to this court the judgment was reversed, and...