State v. Harris

Decision Date31 March 1875
Citation59 Mo. 550
PartiesTHE STATE OF MISSOURI, Respondent, v. TRAVIS HARRIS, Appellant.
CourtMissouri Supreme Court

Appeal from Scott Circuit Court.

Louis Houck, with John D. Foster, for Appellant.

John A. Hockaday, Att'y Gen'l, for Respondent.

WAGNER, Judge, delivered the opinion of the court.

As preliminary to the main questions raised in this case, we will first consider the points in reference to the applications for a continuance and change of venue. At the term at which the defendant was arraigned, he moved for a continuance, on the ground of the absence of one Fricke, who, he alleged, was a material witness. The court granted the continuance to an adjourned term about to be held, but not to the next regular term. When the adjourned term convened, the application was renewed to continue till the regular term, but this was overruled, because the witness Fricke was then present in court, and the defendant could call him and have the benefit of his testimony if he desired it.

The granting of a continuance rests greatly in the discretion of the court trying the cause, and where an adjourned term is about to be held, it may well be made to apply to that term, if the witness can be procured by that time, and it does not by any means follow that a continuance can only be allowed to a general term.

The purpose of a continuance is to enable a party to get ready for trial, and obtain the attendance of his witnesses, and if that can be done as well at an adjourned term as at the regular term, then the object sought for in the application is accomplished. The only ground alleged for the continuance was the absence of Fricke, and as, when the cause was called at the adjourned term, he was present at court, and could be called on to testify, there was no reason for any further delay or continuance, and this point therefore must be ruled against the defendant.

The application for change of venue was based on the ground that the inhabitants of the county were prejudiced against the defendant. The court heard the testimony of witnesses on this question, and then overruled the application.

The act of 1873, amending the 19th section of the law on criminal practice in regard to changes of venue, provides that the petition of the applicant for a change of venue shall set forth the grounds upon which such change of venue may be sought, and the truth of the allegations thereof shall be proved to the satisfaction of the court by legal and competent evidence, which may be rebutted by evidence offered by the prosecuting attorney. (Acts 1873, 57.)

This law was here followed, and both sides introduced testimony in respect to the truth of the allegations in the petition for a change, and the evidence failed to satisfy the court that the inhabitants of the county were prejudiced against the defendant. There is manifestly nothing in the ruling to justify our interference, and we cannot say that the court abused its discretion or decided wrongly.

The indictment was for killing one Masterson, and the defendant was convicted of murder in the first degree. It appears that the parties had some violent words just previous to and at the time of the killing, but when the defendant pulled out his pistol and shot Masterson, there is no evidence that the latter was making any demonstration against defendant's person, and the proof shows that he was not armed. Whilst bandying their epithets and abusive language Masterson was standing with a coal oil can on one arm, and with the other hand hanging by his side, or in his coat pocket--it is not certain which--when the defendant seized his pistol and fired the fatal shot. There was testimony tending to show that Masterson had made threats against the defendant, and also that he was a dangerous and turbulent man. But the court refused to admit evidence showing that the deceased entertained ill-feelings towards the defendant.

Whilst in some cases this evidence might be highly proper, it is obvious that in the present case there was no material error in the ruling. Evidence had already been admitted showing that the deceased had made threats against the defendant, and that was to a great extent indicative of the feeling harbored by Masterson, the deceased. But the facts, as found by the jury, are, that at the time of the shooting, Masterson made no assault upon or demonstration towards the defendant showing an intent or design to commit upon him personal injury. Under certain circumstances, threats and ill-feeling will have a tendency to mitigate or characterize the grade of the offense, but they will never extenuate an assault upon, or the murder of, the individual uttering them, when he is making no efforts or attempts to carry them out. Threats and ill-feeling are harmless, provided they are not executed, but where they exist, they are sufficient to put the person threatened on his guard, and will often justify an aggressive line of action on his part, which would be indefensible under other...

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29 cases
  • State v. Taylor
    • United States
    • Missouri Supreme Court
    • 1 Julio 1932
    ...court. Dulle v. Deimler, 28 Mo. 585; State v. Barnes, 20 Mo. 413; State v. Connell, 49 Mo. 286; State v. Butler, 118 Mo. App. 590; State v. Harris, 59 Mo. 550; Nickey v. Leader, 235 Mo. 30. (2) The Circuit Court of St. Francois County committed no error in overruling appellant's amended mot......
  • State v. Taylor
    • United States
    • Missouri Supreme Court
    • 10 Junio 1932
    ...court. Dulle v. Deimler, 28 Mo. 585; State v. Barnes, 20 Mo. 413; State v. Connell, 49 Mo. 286; State v. Butler, 118 Mo.App. 590; State v. Harris, 59 Mo. 550; v. Leader, 235 Mo. 30. (2) The Circuit Court of St. Francois County committed no error in overruling appellant's amended motion for ......
  • The State v. Zorn
    • United States
    • Missouri Supreme Court
    • 5 Marzo 1907
    ...made that the character and reputation of the deceased for rashness, viciousness and turbulency becomes material. As was said in State v. Harris, 59 Mo. 550, 553: man may be a very bad man, rash, vindictive and turbulent, still he is under the protection of the law, and whilst he behaves hi......
  • State v. Wilson
    • United States
    • Missouri Supreme Court
    • 31 Octubre 1884
    ...to base an instruction for murder in the second degree. Defendant is guilty of murder in the first degree or guilty of no offence. State v. Harris, 59 Mo. 550; State v. Kotovsky, 74 Mo. 247; State v. Ward, 74 Mo. 253; State v. Starr, 38 Mo. 270; State v. Jones, 79 Mo. 441; State v. Snell, 7......
  • Request a trial to view additional results

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