State v. Jackson
| Decision Date | 31 January 1853 |
| Citation | 17 Mo. 544 |
| Parties | STATE, Defendant in Error, v. JACKSON, Plaintiff in Error. |
| Court | Missouri Supreme Court |
1. Whether a prosecutor shall be compelled to elect on which count of an indictment he will proceed, is a matter of discretion with the court; where the same offence is charged in different forms, the court may very properly refuse to compel an election.
2. On a charge against A., of an assault with intent to kill B., no remarks or threats affecting A., made by B. to a third party previously to the assault, are admissible in evidence in A.'s behalf; certainly not, when it does not appear at what time they were communicated to him.
3. Declarations of B. some months after the assault, in palliation of A.'s guilt, are not admissible.
4. Nor is the evidence of B.'s general bad and dangerous character admissible, he being unoffending when assaulted.
5. Evidence of threats made by B. is not admissible, if sufficient time had elapsed for the blood to cool.
Error to Saline Circuit Court.
Shackelford, for plaintiff in error.
James B. Gardenhire, (attorney general,) for the State.RYLAND, Judge, delivered the opinion of the court.
The defendant was indicted for feloniously assaulting and shooting one Jonathan Millsaps, with intent to kill him. There were several counts in the indictment. The defendant appeared and pleaded not guilty. At the trial term, after the jury were sworn, the defendant moved the court to compel the counsel for the State to elect under which count of the indictment the prisoner should be tried. This motion the court overruled, and the defendant excepted. The State then introduced testimony to prove the offense, and the defendant offered evidence in mitigation. The jury convicted the defendant, and assessed his punishment at two years' imprisonment in the state penitentiary. A motion was made for a new trial, which being overruled, the defendant excepted, and brings the case here by writ of error.
The defendant, by his counsel, offered to prove in mitigation, that defendant was informed on the evening of the day before the shooting took place, that Millsaps had made an agreement with defendant's wife to get her a divorce and marry her. This evidence was objected to by the State, and rejected by the court. The defendant then offered to prove that Millsaps had told a witness, that another person was more to blame for the shooting than the defendant was. This was objected to by the attorney for the State, and the objections were sustained by the court. The defendant then offered to prove the general character of Millsaps, as a desperado, and dangerous man, and likely to carry his threats into execution. This proof being objected to, was likewise excluded and rejected by the court. The case was submitted to the jury under instructions. Both parties asked the court to give instructions, and all the instructions prayed for by each party, were given to the jury without any objection or exception. The only matters then, for our consideration, are the rulings of the court below, in regard to the refusal to compel the circuit attorney to elect under which count the defendant should be tried, and the exclusion and rejection of evidence in mitigation.
1. The practice of compelling the State to elect the count on which the trial shall be had, is one always addressed to the sound discretion of the court. When the court can see from the indictment, that there is but one criminal act charged, although there are several counts in which the transaction is set forth in a different manner, and with different words, and different averments, calculated to meet the different statements of the witnesses who are expected to prove the offence, it would cripple the prosecution to make the State elect. But where the court can see from the indictment, that various different and distinct offences, each a felony, have been charged in one indictment, then the discretion of the court may be exercised properly in making the order compelling the State to elect. This is always addressed to the discretion of the court, and this court will not reverse for the exercise of such discretion, unless in a case where the abuse is most obvious and manifest. To make the State elect on which count it would prosecute, in all cases where there is more than one count, would be to require, in practice, but one count in indictments. Yet we know that pleaders have always been cautioned and advised to arrange the formal charges constituting the crime, in different counts, in different forms of the same indictment, so as to meet the evidence, as well as to meet the various constructions...
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