State v. Kennedy

• Decision Date: 10 December 1907
• Citation: 207 Mo. 528,106 S.W. 57
• Parties: STATE v. KENNEDY.
• Court: Missouri Supreme Court

106 S.W. 57

207 Mo. 528

STATE v. KENNEDY.

Supreme Court of Missouri, Division No. 2.

December 10, 1907.

1. MARRIAGE — ESSENTIALS — COMMON-LAW MARRIAGE.

Evidence that defendant and a woman lived together in open notorious cohabitation, with nothing to indicate that a marriage contract by words de præsenti had ever been entered into between them, was insufficient to show a valid common-law marriage.

2. HOMICIDE — MANSLAUGHTER — PROVOCATION — INSULTING REMARKS.

Mere words of reproach and insulting remarks, without any personal violence by deceased towards defendant, were not sufficient provocation to reduce the killing of deceased from murder to manslaughter.

3. WITNESSES — IMPEACHMENT — CROSS-EXAMINATION — RECORD OF CONVICTION.

Where defendant's paramour was a witness in his behalf, the state was authorized by Rev. St. 1899, § 4680 [Ann. St. 1906, p. 2549], to impeach her on cross-examination by her own testimony, and by the record of her conviction of having lived with defendant in open and notorious adultery.

4. CRIMINAL LAW — APPEAL — OBJECTIONS IN LOWER COURT — EVIDENCE.

An objection to the introduction of the record of the conviction of a witness must be made at the time it is offered, and cannot be taken for the first time on appeal.

5. HOMICIDE — EVIDENCE — THREATS.

Where it was undisputed that defendant shot and killed deceased when deceased was going away from him, and was making no attempt to carry any previous threats into execution, evidence of such threats was inadmissible to explain defendant's possession of a pistol at the time of the homicide, under the rule that threats alone, unaccompanied by an overt act or outward demonstration, will not justify hostile acts toward those making the threats, but that the danger must be immediate.

6. CRIMINAL LAW — EVIDENCE — RES GESTÆ — STATEMENTS OF THIRD PERSON.

Where defendant killed deceased as he was leaving defendant's tent, where deceased had gone after eating his dinner, evidence that a man came to deceased and told him that defendant wanted him to come up after he had finished his dinner, and that, after he had done so, deceased went to defendant's tent, though incompetent to prove that defendant in fact sent for deceased, was admissible as res gestæ, to show that deceased received the information, and as explaining why he went to defendant's tent.

7. HOMICIDE — APPEAL — PREJUDICE — EVIDENCE.

Where defendant shot deceased as he was leaving defendant's tent, and there was no evidence that deceased went to the tent to have a difficulty, defendant was not prejudiced by evidence that a man came to deceased, and told him that defendant wanted him to come up to defendant's tent after deceased had eaten his dinner, and that deceased went.

8. SAME — PROTECTION OF FEMALE.

Where defendant was living in adultery with a woman at the time deceased was alleged to have committed an assault on her, defendant's relation to her was not such as to authorize him to kill deceased because of such assault.

Appeal from Criminal Court, Greene County; Jno. T. Moore, Special Judge.

David Kennedy was convicted of murder in the second degree, and he appeals. Affirmed.

Gorman, Sherwood & Delaney, for appellant. The Attorney General and John Kennish, for the State.

GANTT, J.

At the July term, 1906, of the criminal court of Greene county, the prosecuting attorney of said county filed an information in open court charging the defendant, David Kennedy, with murder in the first degree of Walter Williams at said county August 2, 1906. The defendant being without means to employ counsel to conduct his defense, such counsel was assigned him by the court. Several dilatory pleas were filed by the defendant and overruled by the court, of which ruling but one, namely, the action of the court in overruling motion to quash the panel of the petit jury, was preserved in the motion for a new trial, and therefore is now before this court for review. A change of venue from the regular judge on the ground of the prejudice of the judge was granted, and Judge Moore, of the Thirty-First judicial circuit, was requested to, and did, preside at the trial of the cause. The defendant was duly arraigned, tried, and convicted of murder in the second degree, and his punishment assessed at 50 years' imprisonment in the state penitentiary. A motion for new trial was filed in due time, and, being overruled and exceptions saved, sentence was pronounced in accordance with the verdict. After judgment had been rendered and sentence passed, a motion in arrest of judgment was filed, overruled by the court, and exceptions saved to such ruling. The defendant has appealed to this court.

On the part of the state the evidence tended to prove that the defendant, David Kennedy commonly known as "Yank," was an unmarried negro laborer, and at the time of the homicide was working at Root Bros.' camp, about four miles southwest of the city of Springfield, in Greene county. Root Bros.' camp was a railroad construction camp, at which the laborers lived in tents. The defendant had worked at said camp a greater part of the year, and for some time before the homicide had occupied a tent with an unmarried negro woman named Eva Parks. Walter Williams, the deceased, lived at the Root Bros.' camp, and had been employed there as a teamster, and had known the defendant for several months before the date of the homicide. In the forenoon of the day of the homicide, the defendant did not work, and was heard in his tent engaged in an altercation with the Parks woman. The witness Ray Williams went to the tent, and saw the defendant oiling a revolver. The defendant stated to the witness that he did not feel well. While the deceased was at his dinner, he was informed that the defendant desired to see him at his (defendant's) tent, and, after eating his dinner, the deceased went to defendant's tent, and sat down on the outside. The testimony for the state does not show that any conversation occurred between Williams and the defendant, but that they were seen together after Williams went to the defendant's tent. Just after the gong had sounded summoning the men to work after dinner the deceased got up and started in the direction of the corral to get his team to go to work. When he had walked a distance of about 75 feet from the tent, the defendant appeared outside of the tent and fired a pistol shot at the deceased. The latter stopped and looked back over his shoulder, then walked on towards the corral. A second shot was then fired by the defendant at the deceased, at which the deceased flinched, and started in a run through the corral and to the blacksmith shop beyond. Upon examination it was found that the deceased had received a bullet wound, the bullet entering at the back part of the right hip, passing through the large intestine and lodging in the front part of the left groin. The wound was fatal, and from its effects the deceased died about 6 o'clock on the evening of the next day.

On the part of the defendant the testimony tended to prove that, when he returned from his work on the evening preceding the homicide, he found the Parks woman in a distressed condition of mind, and was informed by her that she had been assaulted by Walter Williams, the deceased; that, when the latter came to defendant's tent after dinner, the next day, he asked him concerning the treatment of the Parks woman, and said to him, "Strong, how came you to make Eva have you?" and deceased said, "Who says so?" and the defendant said, "She did," and thereupon the deceased got up and the defendant said to him, "You ought to be ashamed," and the deceased answered he was not ashamed, and left...