State v. Lewis
| Decision Date | 30 March 1915 |
| Parties | THE STATE v. WALTER LEWIS, Appellant |
| Court | Missouri Supreme Court |
Appeal from Washington Circuit Court. -- Hon. E. M. Dearing, Judge.
Affirmed.
Frank H. Farris, S. G. Nipper and Byrns & Rhodes for appellant.
(1) The admission of the statement of witness Foard, that on July 23 1911, while they were discussing some trouble between two women, and a fight that some one had with Robert Edsell, that defendant said, "If he got in trouble with any of them they would never have any trouble when he was through with them," was prejudicial error. It was not a threat nor any expression of malice or ill will. It was not a statement of any intention or desire to do anything toward the deceased. It was said with no reference to the deceased. It referred to no event that had happened, and did not forecast anything which was to happen. It was a mere nothing. Black's Law Dictionary, p. 1171; 6 Ency. Evidence, pp 710-711; State v. Crabtree, 111 Mo. 141. (2) Again, if it was admissible, it was not for the witness to say to whom it had reference, or what person it affected. It was for the jury to determine that. State v. Hopper, 142 Mo. 482. The statement of the witness in this case is not included within the rules declared in the following cases: State v. Guy, 69 Mo. 434; State v. Grant, 79 Mo. 137; State v. Brown, 188 Mo. 465; State v. Feeley, 194 Mo. 313. (3) The testimony of witness Foard as to dying declarations of deceased was also inadmissible. The preliminary condition of the deceased, that is, his knowledge and belief of impending dissolution, and certain death, at the time of making the statements, were not sufficiently established to make the statements of deceased dying declarations, and they were not a part of the res gestae, and therefore hearsay. 1 Greenleaf on Evidence (12 Ed.), secs. 158, 160; 21 Cyc. 973, 974, 976. It is always necessary to lay a foundation for the introduction of dying declarations on the trial by first proving that they were made under a sense of impending death. 21 Cyc. 982; State v. Simon, 50 Mo. 373; State v. McCannon, 51 Mo. 161; State v. Johnson, 76 Mo. 125; State v. Partlow, 90 Mo. 629; State v. Mathes, 90 Mo. 573; State v. Elkins, 101 Mo. 350; State v. Johnson, 118 Mo. 501; State v. Nocton, 121 Mo. 549; State v. Zorn, 202 Mo. 31; State v. Horn, 204 Mo. 546. The testimony was not admissible for the further reason, that the witness used his own construction of deceased statements, instead of using the language of deceased, and stated things which were conclusions, and did not refer to the acts and identity of the defendant, nor to the actual combat between him and defendant. State v. Horn, 204 Mo. 546; State v. Parker, 172 Mo. 202; State v. Kelleher, 224 Mo. 167; State v. Kelleher, 201 Mo. 636. (4) The testimony of witness Silas Baker was hearsay and inadmissible. It was not a part of the res gestae, was not shown to be a dying declaration, and was the mere repetition of the statements of deceased after the difficulty was over. No attempt was made to lay the foundation for its admission as a dying declaration, and the record shows that it was not the same conversation, and was not had at the same time as those admitted as dying declarations to other witnesses. State v. Simon, 50 Mo. 373; State v. McCannon, 51 Mo. 161; State v. Johnson, 76 Mo. 125; State v. Partlow, 90 Mo. 629; State v. Mathes, 90 Mo. 573; State v. Elkins, 101 Mo. 350; State v. Johnson, 118 Mo. 501; State v. Nocton, 121 Mo. 549; State v. Zorn, 202 Mo. 31; State v. Horn, 204 Mo. 546. The testimony of this witness was not admissible under any rule. State v. Parker, 172 Mo. 675. (5) The striking out of the answers of Homer Hopkins and of John Brown, witnesses for defendant, and the action of the court in the examination of John Brunk, witness for defendant, were error, and prejudicial to the defendant. The questions and answers in each of these instances were proper and admissible, and clearly within the rules.
John T. Barker, Attorney-General, and Lee B. Ewing, Assistant Attorney-General, for the State.
(1) The defendant having been convicted of murder in the second degree cannot complain of instructions given upon murder in the first degree. However, said instruction number 1 on murder in the first degree was proper. State v. Lewis, 248 Mo. 498; State v. Little, 228 Mo. 293; State v. Heath, 221 Mo. 565; State v. Bobbitt, 215 Mo. 18. Instructions 2, 3, 4, 6, 7, 8, and 9 are verbatim copies of instructions given on the former trial of this case and were approved upon the former appeal. They are in form long recognized as correct by this court. State v. Lewis, 248 Mo. 509; State v. Todd, 194 Mo. 377; State v. Sebastian, 215 Mo. 58; State v. Fitzgerald, 130 Mo. 420. Instruction number 11 properly declared the law as to statements made by defendant, and presumptions arising therefrom. State v. Wilson, 223 Mo. 173. Instruction number 14 is a correct declaration of law as to the weight to be given the dying declaration. State v. Parker, 172 Mo. 191; State v. Zorn, 202 Mo. 31. The court properly refused to give defendant's instructions numbers 1, 2 and 3. They are not correct declarations of law and are comments upon the evidence. Number 1 was refused properly, because the matters therein had already been covered by instruction number 14, given on behalf of State. State v. Parker, 172 Mo. 191; State v. Mitchell, 229 Mo. 683; State v. Bobbitt, 215 Mo. 42. There is ample testimony upon which the jury might base a verdict of murder in the second degree. The court did not err in giving an instruction upon murder in the second degree. State v. Bobbitt, 215 Mo. 38; State v. West, 202 Mo. 138; State v. McMillen, 170 Mo. 630; State v. Scott, 172 Mo. 536; State v. Frazier, 137 Mo. 340. Defendant having been tried upon an information charging him with murder in the first degree and there having been testimony to sustain that charge, cannot complain because an instruction was given on murder in the second degree and he was found guilty of the lesser crime. Secs. 4903, 5115, R. S. 1909; State v. Fields, 234 Mo. 624; State v. Whitsell, 232 Mo. 522; State v. Todd, 194 Mo. 377; State v. Edwards, 203 Mo. 528; State v. Darling, 199 Mo. 202; State v. Billings, 140 Mo. 205. (2) The dying declaration of deceased was properly admitted in evidence. It was made under sense of impending death, when hope of life was gone. State v. Finley, 245 Mo. 465; State v. Dipley, 242 Mo. 461; State v. Gow, 235 Mo. 326; State v. Colvin, 226 Mo. 446; State v. Kelleher, 201 Mo. 614; State v. Craig, 190 Mo. 332. (3) Other exceptions to the admission of testimony are not worthy of notice. The exceptions were general and therefore amounted to no exception. State v. Crone, 209 Mo. 330; State v. Priest, 215 Mo. 6; State v. Colvin, 226 Mo. 490; State v. McKenzie, 228 Mo. 598. (4) The argument of James Booth, counsel for State, in the closing address to the jury, was proper. He had the right to comment on defendant's failure to deny certain statements sworn to have been made by him; defendant having taken the witness stand. State v. Larkin, 250 Mo. 218.
On an amended information filed in the circuit court of Washington county charging appellant with murder in the first degree in having shot and killed one James Edsell, appellant was upon a trial in said circuit court at its August term, 1913, convicted of murder in the second degree and his punishment assessed at ten years' imprisonment in the penitentiary. Upon the overruling of his motion for a new trial, an appeal was granted to this court, and the approval of a bail bond by the trial court authorized a stay of execution pending the determination of the case here. This is the second appeal in this case. After a conviction of murder in the second degree at the first trial upon the same information under which appellant was tried in the instant case, he appealed to this court and the judgment of the trial court was reversed and the case remanded for a new trial for the errors set forth in the opinion. The facts in each trial are substantially the same in all material matters, as admitted by counsel for appellant, except as to the admission at the second trial of evidence in regard to dying declarations. For a statement of the facts, therefore, reference may be had to the court's opinion on the first appeal, except as to matters not therein reviewed, which will be set forth at length.
The witnesses in regard to the dying declarations were Dr. David Foard, Silas Baker and Henry Tyrey. Dr. Foard, whose testimony is in the main that of the others, testified that he reached the scene of the shooting about 10:30 o'clock p. m., August 6, 1911; that he was called there to attend James Edsell, who was alleged to have been shot by appellant. Upon his arrival the doctor found Edsell lying on the ground in front of the church; that he examined and determined the location of the wounds, and informed Edsell they were fatal and that he was bound to die. Edsell said he knew it, and began to tell his friends good-bye. One of them was his father-in-law, Mr. Tyrey. In telling them good-bye Edsell said he knew he was going to die, and, addressing his father-in-law, asked him if he would not take care of his (Edsell's) wife and children. Edsell, in detailing the facts in regard to the difficulty to the witness after he had said he knew he was going to die, stated, in effect, that after he (Edsell) and some young men present had been quarreling appellant said to Edsell: "You have said enough to the boys;" that he (Edsell) then stepped down off of the porch before the church door and struck appellant and a shot was fired which struck and wounded a Miss Palmer, who fell to the ground;...
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