State v. Harlan
| Decision Date | 19 November 1895 |
| Citation | 32 S.W. 997,130 Mo. 381 |
| Parties | The State v. Harlan |
| Court | Missouri Supreme Court |
Appeal from Howard Circuit Court. -- Hon. John A. Hockaday, Judge.
Affirmed.
Th. N Williams, W. S. Pope, and I. W. Boulware for appellant.
(1) The court erred in overruling defendant's objection to the competency of Mr. Ives, who was accepted as one of the panel of forty persons from whom the jury was selected. (2) The court should have permitted the witness to testify to his conversation with defendant after the deceased left the cabin and the wheelhouse of the boat. (3) The court erred in admitting the testimony of witnesses Niewedowsky and Holt as to the conversation had in Jefferson City with defendant; it had no reference to the deceased or to any anticipated trouble with him. (4) The court should have permitted defendant to testify that any conversation he had with Niewedowsky and Holt had no reference to deceased. (5) The court should have required the state to produce as a witness Esau Carter, who saw the homicide. Rex v. Simmonds, 1 C. & P. 84; Rex v. Whillbread, Ibid. 84. (6) The court erred in restricting its instructions to the two degrees of murder and in not instructing on manslaughter. Nor was it necessary for defendant to request such instruction. State v. Stonum, 62 Mo. 596.
R. F Walker, attorney general, Morton Jourdan, assistant attorney general, and W. M. Williams for the state.
(1) The court did not err in its rulings on the evidence. The evidence as to the threats of defendant, testified to by the witnesses Holt and Niewedowsky, was competent. State v Crawford, 99 Mo. 74. (2) The court did not err in excluding the alleged conversation of defendant with witness Noble. Com. v. Gray, 30 S.W. 1015. (3) The court did not err in refusing to instruct on manslaughter, there being no evidence to reduce the grade of the offense below murder. Besides the failure to instruct on manslaughter was not assigned for error in the motion for a new trial. See State v. Cantlin, 118 Mo. 100; State v. Brewer, 109 Mo. 648. (4) The state was not required to call Esau Carter as a witness. State v. Eaton, 75 Mo. 586; State v. Johnson, 76 Mo. 121.
The defendant was indicted by the grand jury of Callaway county, at the May term, 1894, for the murder of Charles Moore, on February 27, 1894. He was duly arraigned at the same term and entered a plea of not guilty. He applied for and a change of venue was granted to Howard county. He was tried and convicted of murder in the second degree at the March term, 1895.
The deceased, Moore, lived in Jefferson City and was the owner of a farm on the opposite side of the Missouri river, in Callaway county. Defendant Harlan lived near that farm. On the day of the killing, Moore had been down the river on the Callaway side to his farm, and was returning home on horseback. Defendant Harlan had been to Jefferson City and was returning to his home in the Callaway bottom, east of Jefferson City. Harlan and another party were traveling in a buggy. The deceased, Moore, came up from the east and was going west, in the direction of the ferryboat. A. J. Trambarger, a witness for the state, and a negro named Lewis Murry were at work getting out driftwood about a mile or three quarters of a mile below the ferry, and near Trambarger's house. Moore stopped to talk to Mr. Trambarger. While he was talking there, the defendant, coming from the direction of the ferryboat, drove up in his buggy.
The witness Murry states that defendant said to Moore, "Charley, I want to see you." Both he and Trambarger testify that hot words passed between them. Moore said to defendant, "You are drunk," or "He is drunk," or words to that effect, and rode off at a fast gait toward the ferry. The defendant jumped out of his buggy and called to the deceased to come back, and said that he could whip the deceased, and that if he kept on meddling with defendant he would do it, and added, "I believe I will follow him to the boat," or, "I will follow him and whip him." The deceased paid no attention to him, but went rapidly on toward the boat. When defendant said that he believed that he would follow him and whip him, Mr Trambarger, to whom the remark was addressed, said: "Mr. Harlan, I would defer it," and defendant answered, "I believe I will take your advice." He got into his buggy and turned around and started in the direction of the ferryboat.
The boat, at the time, was lying at the bank on the Callaway side. The deceased went immediately to the boat and rode his horse onto the left-hand side of the boat and hitched him to the bull rail. Deceased then went up the stairs on the left-hand side of the boat, on the side opposite the Callaway shore, into the cabin. Mr. Noble, the clerk of the boat, was in the cabin reading at the time. There were two stairways leading into the cabin, one on each side of the wheelhouse; and at the top of each stairway, and before reaching the door entering the cabin, is a landing of five or six feet, and a person going into the cabin upon one side of the wheelhouse would be in full view of anyone on the other side of the wheelhouse in front of the door of the cabin. The wheelhouse at that point is only three and one half feet higher than the stairway. The defendant followed the deceased on up to the boat, driving rapidly, and got out of his buggy, leaving it on the bank, and went on the boat. The deceased went into the cabin and there had a conversation with witness Noble. This conversation was excluded when offered by the state, upon objection made thereto by defendant.
A very short time after Moore went into the cabin the defendant was heard coming up the steps on the south or left-hand side of the boat into the cabin. Moore went out of the cabin door on the opposite or the north side of the boat, as it was then lying. They then went in full view of each other, but on opposite sides of the wheelhouse. The defendant had just come up the steps on the south side leading into the cabin, and the deceased had just gone out the north door and was starting toward the steps on that side of the wheelhouse.
Noble testifies that, after he, the witness, got out to where the parties were, the deceased was the first to make a remark. He said to defendant: "I want you to quit following me and let me alone. The defendant said: Some words followed between them. The defendant said that he didn't think that deceased had treated him right. There were some sacks in question, and the name of Mr. Shearer was mentioned. Defendant Harlan said he did not think that Moore had treated him right, after what he had done for him. Deceased said: "You never did anything for me but that you were well paid for it." After some other conversation defendant said: (meaning the witness Noble, who was the only other witness besides the deceased and the defendant, upstairs on the boat). The witness Noble declined to decide it, and, after some further controversy, defendant said that if deceased would come down stairs they could settle it -- could settle their trouble in a short time. The deceased replied this: "No, I am not going down stairs; I am on the defensive;" and the defendant said, "Defense, hell," or something to that effect. Defendant said to the deceased, "You are a coward." The deceased made no reply. This witness further stated that he got Mr. Harlan by the hand presently, and took him inside the door of the cabin. Moore, in the meantime, went down the north stairway, went around to the front of the boat, and picked up a stick of wood and walked along the south side of the boat. Defendant Harlan went into the cabin with the witness Noble.
The defendant's counsel asked this witness to state the conversation that took place in the cabin between him and the defendant after the deceased had gone down stairs. This conversation between the defendant and Noble was not in the presence of the deceased. The court sustained an objection on the part of the state to any testimony as to this conversation between the defendant and said witness. Thereupon defendant stated that he proposed to prove that after Harlan went into the cabin of the boat, witness Noble told him that he ought not to have any further trouble with the deceased; that he said enough to him; that they were both old men and had families, and that both were gray haired men, and that they could not afford to have a controversy of that kind, and that defendant replied: "Young man, your advice is good, and I will take it." And that thereupon Mr. Noble said: "Give me your hand on that, Charley," and that he gave Mr. Noble his hand, shook hands with him, and told him he would have no further controversy with Mr. Moore, and said to Mr. Noble: "You know that when I give my hand on a thing I mean it just that way." And that this occurred immediately after the controversy between Mr. Moore and Mr. Harlan, and was a continuous conversation between the time Mr. Harlan began and Mr. Harlan and Mr. Moore parted, or was out of the witness' sight. The court asked the witness whether this conversation proposed to be proved by the defendant was in the presence and hearing of the deceased, and the witness answered that it was not. The court then, upon the objection of the state, excluded the testimony.
The state then proved that after defendant had remained a short time in the cabin, probably from two to five minutes, he went down the south stairway of the...
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