State v. Johnson
| Decision Date | 31 October 1882 |
| Citation | 76 Mo. 121 |
| Parties | THE STATE v. JOHNSON, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Clay Circuit Court.--HON. GEORGE W. DUNN, Judge.
AFFIRMED.
E. J. Broaddus, C. J. Garner, G. D. Ross, Jeff. Davis and Samuel Hardwicke for appellant.
D. H. McIntyre, Attorney General, for the State.
The defendant was jointly indicted with Aaron Harpster at a special term of the Clinton county circuit court, held on the 15th day of December, 1879. He is charged by the indictment with murder in the first degree in killing one Henry C. Culver, and Harpster is charged with being an accessory after the fact. At the April term, 1880, of said court, on defendant's application, a change of venue was awarded to the circuit court of Clay county, and at the February term, 1881, of said court, a severance was granted to Harpster. Defendant was put upon his trial at the February term, 1882, of said court, and convicted of murder in the second degree, and his punishment assessed at twenty-five years' imprisonment in the penitentiary. Motions for new trial and in arrest having been overruled, defendant appealed to this court.
There are a great number of grounds stated in the motion for new trial, but we shall only consider such of them as counsel have deemed of sufficient importance to call our attention to in their briefs, the first of which is, that the court erred in overruling defendant's motion to dismiss the cause, for the reason that it did not appear from the record that the grand jury returning the indictment had been sworn. We find, upon an examination of the record, that the transcript first filed by the circuit clerk of Clinton county in the office of the clerk of the Clay circuit court did not show that the grand jury had been sworn, but we also find that before the determination of the motion for new trial the prosecuting attorney suggested a diminution of the record, and upon such suggestion being made the court awarded a certiorari directing the clerk of the Clinton county circuit court to send up a true, complete and perfect transcript. The transcript sent up and certified to by the said clerk in obedience to the certiorari shows that the grand jury was sworn; and the motion for new trial based on that ground was properly overruled.
It appears from the evidence in this case that Culver, the deceased, was marshal of the town of Cameron, and also a deputy constable, and that he was shot and killed while attempting to arrest defendant. The State was allowed, over the objection of defendant, to introduce the evidence of one McGuire and Harpster, to the effect that during the day on which Culver was killed and previous to the killing, defendant had shot off his pistol two or three times in the streets of said town, and also had shot at a dog in the street a short distance from Culver's house and a short time before the attempted arrest; that defendant said he had made some “son of a bitch git;” had had trouble; that the marshal was after him and was going “to raise a row;” that defendant exhibited two pistols, and afterward bought some cartridges and procured another pistol a short time before the shooting of deceased; that he said to Harpster that the marshal was after him, and if he “fooled with him he would fix the son of a bitch,” that he had two revolvers in his hands rubbing them together. Witness Harpster also stated, that when he and defendant went to the livery stable to get their horses, Johnson said, “let us steal the horses out.” Witness said he would pay for both rather than do that. Johnson drew his revolver and would not let him pay. This witness also detailed what occurred at the time of the shooting. The objection made by defendant, as shown by the record, went to the whole of this evidence, and we think it was properly overruled, even though that portion of it which detailed the conversation at the livery stable might well have been excluded had a specific objection been made to it. The evidence objected to tended to show that defendant knew deceased was a marshal, that he anticipated arrest or attempt at arrest, that he had resolved to resist the arrest and was preparing himself with weapons for that purpose; and it was clearly admissible to establish these things.
It is also insisted that the declarations of deceased after he was shot, should not have been received in evidence, as it did not appear they were made in extremis and under a well-founded apprehension of impending dissolution. This objection is not sustained by the record. Dr. Adams, who was called to see deceased immediately after he was shot, stated that Culver died in ten or fifteen minutes after he reached him, and Culver said, that he could not live, and requested witness to lay him down, saying, “I must die; I cannot live;” that witness then asked him if he knew who killed him, and he replied the “Kidder man;” and upon then being asked if he knew his name, said “Rediker knows.” It was the province of the court to determine whether these declarations were made in articulo mortis, and we are of opinion that the court decided correctly in holding that they were so made and in admitting the evidence. State v. Simon, 50 Mo. 370.
It is also insisted that the evidence of Dr. Adams and Provolt as to the dying declarations, should not have been admitted without the State being required to introduce Potter and Risely, who were present when they were made. This objection is not well founded, it having been held by this court in the case of the State v. Eaton, 75 Mo. 586, that it was not necessary for the State to produce all the witnesses who were present at the commission of a homicide.
It is also insisted that the court erred in not sustaining the motion for new trial because of improper comments made by the prosecuting attorney in his closing argument to the jury. If the State's attorney in said argument made the statements imputed to him in the affidavits of Sarah E. and Nannie Johnson, accompanying the motion for new trial, and they had been objected to, and the attention of the court called to them, and the court had refused to sustain the objection, we would be justified, according to the ruling in the case of State v. Lee, 66 Mo. 165, in interfering with the judgment. But the fact as to whether such statements were made was disputed in a counter-affidavit filed by the attorney for the State, in which he contradicted the essential facts stated in the affidavits of Sarah E. and Nannie Johnson and set forth what in...
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State v. Lowry
...the absence of malice "is not necessarily established by the fact that the arrest or attempt to arrest is illegal." 29 C.J. 1144; State v. Johnson, 76 Mo. 121; State v. McNally, 87 Mo. 644; State v. Holcomb, 86 Mo. 371; Jones v. State, 14 Mo. 413; Roberts v. State, 14 Mo. 138; Williams v. S......
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