State v. Hamilton

• Decision Date: 28 February 1874
• Citation: 55 Mo. 520
• Parties: STATE OF MISSOURI, Respondent, v. JOSEPH P. HAMILTON, Appellant.
• Court: Missouri Supreme Court

55 Mo. 520

STATE OF MISSOURI, Respondent,

v.JOSEPH P. HAMILTON, Appellant.

Supreme Court of Missouri.

February Term, 1874.

Appeal from Harrison Circuit Court.

Alley & Prettyman, and J. H. Shanklin, for Appellant.

James P. Thomas, for Respondent.

WAGNER, Judge, delivered the opinion of the court.

The defendant was indicted in the Mercer County Circuit Court, jointly with one Caroline Hallock for the murder of Elisha W. Hallock. The indictment was against him as principal in the first degree, and against her as accessory before the fact. Upon the application of the defendant a change of venue, was granted to Harrison county, where the trial was had which resulted in the conviction of the defendant of murder in the first degree.

The only errors complained of and which are exclusively relied upon for a reversal of the judgment, are: 1st. “The action of the court in permitting counsel who was employed by the friends of the murdered man, to take a leading part in the prosecution, and especially to close the case before the jury, and indulge as is alleged, in a strain of invective against the accused.” “2nd. In admitting the testimony of the witness Collings, as to what was said in the presence of the accused, as to where the pistol was found with which the act was supposed to have been committed. And 3rd. In excluding the question put to the witness Powell as to the moral character of one of the witnesses, who had been examined on the part of the State.

1st. There is no law in this State to prevent the employment of counsel to assist the Circuit Attorney in carrying on a prosecution. It is very often necessary to promote the ends of justice that it should be done. When counsel are engaged and take part in the conduct of a case, the peculiar position or attitude that they shall assume in reference thereto, is primarily a matter to be arranged between themselves, under the supervision and control of the trial court. It was within the discretion of the court to permit the assistant counsel to conclude the argument in the case, if the prosecuting officer waived his right to do so, and we will not attempt to revise that discretion here. As to the abusive language made use of by the counsel, his words are not preserved in the bill of exceptions. But this court will not undertake to restrain the attorney in his choice of language in arguing a case before the jury. Epithets and invective, in which counsel sometimes indulge, are frequently matters of taste, and cases often occur in which severe animadversion is deserved and merited. But after all, it is for the court in the presence of which the trial is had to determine whether the counsel transcends the limits of professional duty and propriety, and that determination cannot in any appellate tribunal be assigned for error.

2nd. The witness William Collings testified that he was acquainted with the defendant and identified him in court; that on the evening of Hallock's death he was on his farm when he heard of it, and went over to Hallock's farm about a mile distant; then two or three men whom he named, brought a revolver out of the house, and defendant went into the house with them when they got it. The prosecuting attorney then propounded to the witness the question; “What, if anything, was said by any...