State v. McKenzie

• Decision Date: 26 May 1910
• Citation: 228 Mo. 385,128 S.W. 948
• Parties: STATE v. McKENZIE.
• Court: Missouri Supreme Court

128 S.W. 948

228 Mo. 385

STATE v. McKENZIE.

Supreme Court of Missouri, Division No. 2.

May 26, 1910.

1. CRIMINAL LAW (§ 589)—CONTINUANCE—GROUNDS—CUSTOMARY CONTINUANCE.

A custom of delaying trial until subsequent terms was no legal grounds for allowing a continuance in a criminal case.

2. CRIMINAL LAW (§ 598)—CONTINUANCE—DILIGENCE—ABSENT WITNESSES.

Where no subpœnas were issued for witnesses, to procure whom a continuance was asked, and the application did not show diligence in searching for them or that their evidence would have been material, a continuance was properly refused.

3. CRIMINAL LAW (§ 603)—CONTINUANCE—GROUNDS FOR DENYING—INABILITY TO SECURE WITNESSES.

A continuance to procure an absent witness in a criminal case is properly denied where the application did not on its face afford a reasonable ground for believing that the witness could be secured by granting the continuance.

4. CRIMINAL LAW (§ 695)—TRIAL—RECEPTION OF EVIDENCE—OBJECTIONS.

An objection to a question asked on cross-examination that it was immaterial amounted to no objection in law.

5. CRIMINAL LAW (§ 1170½)—APPEAL— HARMLESS ERROR—ADMISSION OF EVIDENCE.

No prejudicial error was committed in overruling an objection to a question to which no answer was made.

6. HOMICIDE (§ 169)—PROSECUTION—ADMISSION OF EVIDENCE.

In a homicide case, in which accused had testified that he went to work the morning of the killing, but was unable to work because of the weather, and that, immediately upon his return, he went to the butcher shop where the killing occurred, accused's sister could be asked on cross-examination whether accused went out and got some beer, as tending to contradict accused's testimony that he went to the butcher shop immediately upon his return.

7. CRIMINAL LAW (§ 1169)—APPEAL—HARMLESS ERROR—ADMISSION OF EVIDENCE.

The question was not of sufficient importance to be reversible, even if erroneously allowed.

8. CRIMINAL LAW (§ 1170½)—APPEAL—HARMLESS ERROR—EXAMINATION OF WITNESS.

Any error in a homicide case in allowing a question as to accused's loafing around at another woman's house and eating at his sister's, and doing nothing, was not reversible, where the witness answered that she knew nothing about it.

9. CRIMINAL LAW (§ 364)—"RES GESTÆ"— DECLARATIONS OF ACCUSED.

Res gestæ are those circumstances which are the undesigned incident of a particular litigated act and illustrate such act, and, in a prosecution for homicide, testimony by defendant's sister that accused told her within from two to five minutes after the killing that he killed decedent in self-defense, etc., was not admissible as res gestæ, being a self-serving statement, in that it was a narrative of a past event not sufficiently connected with the fact of the killing to illustrate it.

10. CRIMINAL LAW (§ 830)—INSTRUCTIONS—REQUESTS—REQUESTING IMPROPER INSTRUCTIONS.

If the evidence authorized instructions on manslaughter in the third or fourth degree, requested instructions thereon which were not in

proper form might be considered as requests for proper instructions on the question.

11. HOMICIDE (§ 79)—MANSLAUGHTER—THIRD-DEGREE MANSLAUGHTER — INTENTIONS OF KILLING.

The crime cannot be third-degree manslaughter where the killing was intentional.

12. HOMICIDE (§ 307)—TRIAL—INSTRUCTIONS —APPLICABILITY TO CASE.

Where defendant's evidence showed that the killing was intentional, so as to make it first or second degree murder, or require acquittal on the ground of self-defense, instructions on third and fourth degree manslaughter were properly refused.

13. CRIMINAL LAW (§ 722)—ARGUMENT OF COUNSEL—COMMENTS.

A statement by the prosecuting attorney in argument in a homicide case that another was an honest man, and did not go to his sister's to eat breakfast like accused did, was not reversible error.

14. HOMICIDE (§ 253)—PROSECUTION—SUFFICIENCY OF EVIDENCE.

Evidence held to sustain a conviction for first-degree murder.

Appeal from Criminal Court, Jackson County; E. E. Porterfield and Wm. H. Wallace, Judges.

Henry McKenzie was convicted of murder in the first degree, and he appeals. Affirmed.

Philip D. Clear, for appellant. E. W. Major, Atty. Gen., and Jas. T. Blair, Asst. Atty. Gen., for the State.

GANTT, P. J.

This is an appeal from a judgment of the Criminal Court of Jackson county, sentencing the defendant to imprisonment in the penitentiary for life on a charge of murder in the first degree. The prosecution was commenced by information filed by the prosecuting attorney on the 10th of November, 1908. The information is a full and complete charge of murder in the first degree on the 23d day of October, 1908, of one Samuel H. Moog, by the defendant, Henry McKenzie, with a revolver. As the information is in the often approved form, it is unnecessary to set it forth at length. The defendant was arrested and duly arraigned in division No. 1 of said criminal court before the Honorable Ralph Latshaw, the judge thereof, on the 12th day of December, 1908, and entered his plea of not guilty, and the case was set down for hearing on December 16, 1908. The cause was then continued to the 21st of December, on which last-mentioned date the defendant filed his motion for a continuance, which was overruled, and thereupon he made his application for change of venue to division No. 2 of said court, which was granted, and the cause was transferred to said division No. 2. Afterwards, on the same day, the application for continuance was renewed before Judge Porterfield in division No. 2, and was overruled, and, both parties announcing ready for trial, a jury was impaneled and sworn, and, after hearing the testimony and instructions of the court, a verdict of guilty of murder in the first degree was rendered, and the defendant's punishment assessed at imprisonment in the penitentiary for life. A timely motion for new trial was filed, heard, and overruled, and the defendant sentenced according to the verdict. Leave was given the defendant by Judge Porterfield to file his bill of exceptions on or before March 1, 1909. It appears that further extensions of time for filing the bill were granted by Judge Latshaw, and the bill was finally filed within the time as so extended, but not within the time extended by Judge Porterfield, who tried the case. The bill of exceptions was signed by Judge Porterfield.

The testimony on behalf of the state tended to show that for some time prior to the day upon which he was shot and killed by the defendant the deceased, Samuel H. Moog, conducted a meat shop or market on the south side of Independence avenue, in Kansas City, near the corner of Independence and Troost avenue. The deceased was a German by birth and 55 years old at the time of his death. The defendant at the time of the homicide was about 27 years old. On the morning of October 23, 1908, George Hughes, a porter in the saloon nearly opposite the butcher shop of the deceased, heard a shot fired in deceased's shop just as the witness was leaving the saloon upon an errand for his employer. Almost immediately after hearing the shot, he saw the defendant run out of the shop, close the door behind him, and run down a narrow passageway just east of the shop. Defendant displayed no weapon at this time. There were no other persons on the street near the shop at this juncture save the porter and the defendant. Hughes immediately stepped back to the door of the saloon and informed his employer and those in the saloon of the shooting, and these persons went immediately to the scene of the homicide, and found no person save the deceased in the shop. When they entered the butcher shop, they found the deceased lying on the floor in a pool of blood and in a dying condition. There were no weapons near the dying man, though there was a meat knife on the meat block back of the counter and another meat knife under the counter. The deceased was lying in front of the counter, between which and the street door there was a space of about seven feet. The testimony of the coroner established that death resulted from a bullet wound. The ball had entered on the right side of the lower lip, passed through the root of the tongue, and into the spinal column at the first cervical vertebra, and the wound was necessarily and almost instantaneously fatal.

At the time of the homicide and some two months prior thereto, the defendant lived at the house of a woman named Harris, the entrance to which house was a few feet from the rear door of deceased's meat shop. The evidence tended to show that the defendant's relations with the Harris woman were of an improper character, and he had indicated his jealousy of her and the deceased by following her when she would go to the shop, waiting for her on the outside, and complaining when she came out. Immediately after the shooting, the defendant entered the rear door of the house next to that in which he and the Harris woman lived, and closed the door behind him, and stood up with his back to the door. In a few minutes the report of the shooting of deceased was brought to this house by a woman of the name of Clark, and was commented upon by those in the house in the presence of the defendant, but he said nothing whatever about the matter. In a few minutes after this the defendant was arrested in the house occupied by him and the Harris woman. When the officer went into the room, he says the defendant was walking up and down in the room backwards and forwards, and seemed to be very nervous. The officer asked him what was the matter with him, and defendant answered: "I thought I heard a shot out there." The officer then arrested the defendant and one Frank Foster, another negro, and took them into the butcher shop and waited there until another officer called with the police wagon, whereupon they took the defendant Foster, and Ed. Harris to the police station. The officer inquired of the defendant what he was doing at the time the shot was fired, and he said he had...