State v. Kilgore

• Decision Date: 31 October 1879
• Parties: THE STATE v. KILGORE, Appellant.
• Court: Missouri Supreme Court

70 Mo. 546

THE STATE

v.KILGORE, Appellant.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Audrain Circuit Court.--HON. G. PORTER, Judge.

AFFIRMED.

Forrist & Fry for appellant.

1. It was the duty of the State to call as witnesses all who were eye-witnesses of the homicide. Mrs. Railey was, therefore, properly a witness for the State, and the State had no right to offer evidence to impeach her testimony. State v. Wingo, 66 Mo. 182; State v. Foster, 61 Mo. 553; Comm. v. Drum, 58 Pa. St. 9; Maher v. People, 10 Mich. 225; State v. Underwood, 57 Mo. 40; 1 Wharton Am. Crim. Law, (6 Ed.) § 592; Roscoe's Crim. Ev., (6 Am. Ed.) 1; U. S. v. Gibert, 2 Sumn. 19; Porter v. State, 1 Tex. Court of App. 394; Regina v. Holden, 8 C. & P. 609; Hurd v. People, 25 Mich. 405; Roscoe's Crim. Ev., 135; Regina v. Chapman, 8 C. & P. 559; Broom's Legal Maxims, 279; Rumsey v. Northeastern R. C., 14 C. B. N. S. 653 (78 E. C. L. R.); Ames v. Waterlow, L. R. 5 C. P. 55.

2. The statement of Willingham was not competent as a dying declaration. State v. Simon, 50 Mo. 373; State v. McCanon, 51 Mo. 161; State v. Draper, 65 Mo. 341; 2 Russell on Crimes, (5 Am. Ed.) 725, 760; Smith v. State, 9 Humph. 9; Morgan v. State, 31 Ind. 199; 1 Wharton Am. Law, (6 Ed.) § 671; Rex v. Fagent, 7 C. & P. 238; R. v. Spilsbury, 7 C. & P. 187.

3. The first instruction given on behalf of the State is erroneous, in that, it does not submit to the jury the question of identity of the deceased, as the party named in the indictment; it does permit the jury to find appellant guilty upon the preponderance of the evidence, and contains no legal definition of the terms used in the indictment; it is inconsistent with other instructions in the series, and ignores appellant's defense. 2 Russel, Crimes, (5 Am. Ed.) 795; 1 Whart. Am. Crim. Law, (6 Ed.) § 595, et seq. §§ 707, 744; State v. Foster, 61 Mo. 553; State v. Lane, 64 Mo. 319; State v. Heed, 57 Mo. 253; Jackson v. Bowles, 67 Mo. 609; Crews v. Lackland, 67 Mo. 619; Seymour v. Seymour, 67 Mo. 303; State v. Williamson, 16 Mo. 394; Clark v. Hammerle, 27 Mo. 55.

4. The second instruction is erroneous, in that it places deliberation and premeditation upon the same footing with malice to be “inferred from the circumstances connected with the killing,” and is misleading and inconsistent with itself. State v. Foster, 61 Mo. 549; State v. Lane, 64 Mo. 319; Seymour v. Seymour, 67 Mo. 303.

5. The third instruction is erroneous, in that it directs the jury that if they shall find to exist the elements of a crime not charged in the indictment, they will convict the appellant under the indictment; and because it directly and in terms refers matters of law to the jury to-wit: if they shall find defendant was “lying in wait,” and shall find while so lying in wait the defendant, with malice, willfully, with premeditation and deliberation, “as these terms are known to the law,” &c., they should convict, there being no definition given of “lying in wait,” or how the other terms are known in the law. 1 Wag. Stat., p. 445, § 1; Bower v. State, 5 Mo. 379; State v. Jones, 20 Mo. 60; Comm. v. Jones, 1 Leigh 610; State v. Arter, 65 Mo. 654; State v. Stone, 68 Mo. 102; Wyatt v. Citizens R. R. Co. 55 Mo. 485; Wiser v. Chesly. 53 Mo. 547; Hudson v. St. L., K. C. & N. R. R., 53 Mo. 525: State v. Heed, 57 Mo. 254; Mueller v. Putnam Ins. Co., 45 Mo. 84; State v. Dunn, 18 Mo. 423.

6. The court erred in not instructing the jury that the testimony of the impeaching witnesses on part of State could only be received for the purpose or impeaching Mrs. Railey's statements, and could, under no circumstances, be received as evidence against the accused. State v. Swain, 68 Mo. 615.

7. It was the duty of the court to instruct the jury as to manslaughter because, under the indictment and evidence, they might have found defendant guilty of manslaughter in the second or fourth degree, if they found him guilty of any crime at all. State v. Branstetter, 65 Mo. 154.

J. L. Smith, Attorney-General, and J. McD. Trimble, Prosecuting Attorney, for the State.

1. The reasons which led to the establishment of the rule of the common law, that the State must call all the eye-witnesses of a homicide, have been removed by statute, and the rule itself, therefore, no longer exists in this State. At common law the defendant was not allowed the benefit of counsel in the presentation of his cause; he had no means of procuring the presence of witnesses in court, or of procuring their testimony, not being allowed subpœna for witnesses; and he was not allowed the right to testify in his own behalf. It is true he was permitted to introduce and examine witnesses in his behalf, provided, such witnesses voluntarily came to court, but he could not compel their attendance Hence it is obvious that the only light which the jury or the court could with certainty expect, as to the merits of the case upon trial, must come from the witnesses for the State. In the interest of justice, therefore, the State was required to summon all who were present. But these things have all been changed by statute. Aside from this, the State denied that Mrs. Railey was present. Wellar v. People, 30 Mich. 16. The fact that her name was on the indictment as one of the State's witnesses was no reason why the State should call her. Rex v. Simmonds, 1 C. & P. 84; Rex v. Harris, 7 C. & P. 581.

2. The third instruction is good. The indictment charges a willful, deliberate and premeditated killing. This certainly includes a killing by lying in wait. State v. Green, 66 Mo. 631; State v. Pike, 49 N. H. 399; Riley v. State, 9 Humph. 659; Bratton v. State, 10 Humph. 103. All the instructions are in harmony with the ruling of this court in similar cases. State v. Foster, 61 Mo. 554; State v. Underwood, 57 Mo. 40: State v. Starr, 38 Mo. 270; State v. Linney, 52 Mo. 40.

3. The statement of Willingham was competent as a dying declaration. 1 Greenl. Ev., §§ 156-160; Roscoe Crim. Ev., § 35. If a declaration was competent when uttered, a subsequent hope of recovery will not render it incompetent. State v. Tilghman, 11 Ired. (N. C.) 513; Dunn v. State. 2 Ark. 229; Swisher v. Comm., 26 Gratt. 963.

HENRY, J.

The defendant was indicted for the murder of Lorenzo D. Willingham, and at the June term, 1879, of the Audrain circuit court, was tried, found guilty of murder in the first degree and sentenced accordingly. There is a great mass of testimony--that on the part of the State tending to prove the crime as alleged--that for the accused, a case of self-defense. It is not necessary, in this opinion, to state the evidence, except so far as may be required in order to show the propriety of giving or refusing instructions, or admitting or excluding evidence.

1. WITNESS: practice, criminal.

The first objection to the action of the court, made by the counsel for defendant, is that Mrs. Railey, whose name was indorsed upon the indictment as a witness for the State, and who, it is alleged, witnessed the homicide, was not called by the State, and when introduced by the defendant, the State was permitted to adduce evidence to impeach her testimony, by showing that she had previously made statements conflicting with those testified to by her. The proposition of counsel is, that it is the duty of the State to call all persons to testify who were present and witnessed the killing, and that all such are the State's witnesses, even though called by the defense. This question does not properly arise in this case, because it was denied that Mrs. Railey witnessed the homicide, and the evidence introduced by the State, in this connection, which is complained of, was introduced and tended to show that she was not present. If the rule contended for prevails here, it would only oblige the State to call those persons who were certainly present; but whether, it obtains or not, has never been determined by this court and the question is not now before us in a shape that requires its decision.

2. DYING DECLARATIONS.

With regard to the dying declarations of Willingham, introduced by the State: Dr. Rodman testified that he examined the dead body and found that twenty-five shots had entered the face and chin of deceased; his front teeth were gone, his chin and his right arm broken; that either the wound in the face or the arm was necessarily fatal. From the wound in the face no one could say how long deceased could have lived; might have lived several days, but with both wounds could not have lived long. Chenowith testified that he saw deceased the day he was shot on the stiles in front of Kunkle's house. He seemed half asleep; was wounded about the neck; his right arm was shot off, chin broken, front teeth shot out, and bleeding fearfully from the arm. From other evidence it appears that after he was shot he walked to Kunkle's, between three and four hundred yards, and fell at the stiles, unable to proceed further. He said to Chenowith, “I am dying,” asked witness who he was--witness told him, and he said, “O Lord, I am dying,” and this he repeated several times. He died that afternoon, within three or four hours after he received the wounds. After deceased stated to Chenowith that he was dying, he was asked if a physician should be sent for: he said “yes,” and after the physician was sent for deceased asked if he had come, and being told that he had not, said: “If he don't come soon, and if I don't get some relief, I cannot live long. I am freezing out here--take me to the fire.” Chenowith also testified that he kept Willingham still, and did not let him talk much; that he had to wipe his mouth out occasionally to prevent him from being strangled with the blood from his wound. Chenowith was then asked what deceased, after saying that he was dying and could'nt live long, said as to the person who shot him: Defendant made objection, which was overruled, and the witness answered: “Immediately after deceased said ‘I am dying--I can't live.’ I asked him who...