State v. McLaughlin

• Decision Date: 07 March 1899
• Citation: 50 S.W. 315,149 Mo. 19
• Court: Missouri Supreme Court
• Parties: STATE v. McLAUGHLIN.

50 S.W. 315

149 Mo. 19

STATE v. McLAUGHLIN.

Supreme Court of Missouri, Division No. 2.

March 7, 1899.

HOMICIDE — EVIDENCE — CRIMINAL LAW — HARMLESS ERROR — OBJECTIONS — ERROR CURED — RES GESTÆ — SELF-DEFENSE — INSTRUCTIONS — PREMEDITATION — REASONABLE DOUBT — FLIGHT — PRESUMPTION OF GUILT — WITNESSES — IMPEACHMENT — REPUTATION.

1. In a prosecution for murder accomplished by shooting through the heart, the admission of the opinion of a physician that a person could go only a few steps after receiving such a wound is not reversible error.

2. A witness' testimony that he looked out of his window after hearing the shot, and saw a man approach deceased's body, and heard him say, "I am gone to hell, anyway, but I want you boys to come back, and see that he had a knife," is admissible as a part of the res gestæ, though the witness could not identify the man, where there was evidence that defendant had uttered similar words under similar circumstances.

3. The failure of the state to show that the condition of deceased's vest, received in evidence, had not been changed since the ball had entered it, is cured by proof of such fact on the examination of a witness by defendant.

4. Where defendant claims that deceased had assaulted him with a large, open knife, that was found on his body, and there was evidence that he never had such a knife in his possession, evidence that a small penknife was found in his pocket, unopened, is admissible.

5. It was not error to exclude defendant's reasons for compelling a person to witness his picking up the large knife from deceased's body shortly after the homicide.

6. Where the homicide occurred at 4 o'clock a. m., shortly after defendant and deceased had left a "dive," and defendant testified that he quit work about 12 o'clock, it was not error to permit an inquiry, on cross-examination, as to what kind of business he was engaged in.

7. Where defendant testified that no quarrel took place that night while they were in the dive, it was not error to permit an inquiry, on cross-examination, as to whether he flourished a pistol around while he was quarreling with deceased in the dive.

8. It was not error to permit an inquiry, on defendant's cross-examination, as to whether he waited on customers in the dive on the night

of the homicide, and whether there was any playing of cards, where defendant had testified that he was running the dive for another, and that he fled for fear of being indicted for selling liquors unlawfully.

9. It was proper to permit the prosecuting attorney, in his argument, to allude to the fact that defendant was a seller of liquors in a dive.

10. The admission of evidence that others in the dive played cards, and that defendant put a revolver in his pocket when he left the dive, was not error, in the absence of objection.

11. Where defendant testified that deceased drew the knife on him while he was but a short distance from companions, evidence that the attention of the companions was not called to the drawing of the knife was admissible.

12. Where defendant introduced irrelevant and self-serving evidence that he was willing to stand trial, and that he came back voluntarily from a distant state without requisition papers, he may be cross-examined as to his movements from the time of the homicide to the time of his arrest.

13. Where deceased's employé, who was closely associated with defendant's employer after the homicide, which occurred in his presence, testified for defendant, he may, on cross-examination, be compelled to disclose his association with defendant's employer.

14. The fact that an eyewitness of a homicide fled to another county to avoid service of a subpœna may be proved by other evidence than a return on a subpœna.

15. Where, in a prosecution for murder, on an issue whether the deceased had a knife with which to assault defendant, a witness testified that deceased's father stated that deceased had carried off such a knife, the witness may be asked, on cross-examination, if he had not had trouble with deceased's father.

16. An objection in a criminal case that a question calls for illegal evidence is too general to be considered.

17. Evidence that a witness' reputation for truth was bad in a town in which he had done business for eight months, ending a year and a half before the trial, is competent impeaching evidence.

18. One living five miles from a town may testify as to a witness' general reputation for truth in such town.

19. The fact that a witness for a defendant in a murder case, after testifying that the reputation of another witness was good, was permitted to be asked if such other witness had not been engaged in certain disreputable transactions, will not justify a reversal of a conviction.

20. An instruction, in a murder case, to find defendant guilty, whether any motive for the deed was apparent or not, if the jury are satisfied beyond a reasonable doubt that defendant is guilty of the crime charged in the indictment, is not vitiated by the allusion to "the charge in the indictment," where the preceding instruction defines the essentials of the crime.

21. Willfulness, premeditation, and malice aforethought may be proved in a murder case by the facts and circumstances attending the homicide.

22. In a murder case, it is not necessary, in each instruction defining the essentials of the crime, to state that they must be proved beyond a "reasonable doubt."

23. Decedent was killed shortly after leaving a dive in which defendant was engaged in the business of selling liquors unlawfully. After the homicide, defendant fled from state to state, until he reached an obscure mining camp. He gave himself up voluntarily when arrested, and made no demand for requisition papers. He testified that he fled to avoid prosecution for liquor selling. Held, that an instruction, in a trial for murder, on the presumption of guilt arising from flight, was proper.

24. It is not error to refuse to charge specifically that defendant cannot be convicted of a crime other than the one for which he is on trial, though there was evidence that he is guilty of another crime.

Appeal from circuit court, Caldwell county; E. J. Broaddus, Judge.

John McLaughlin was convicted of murder, and he appeals. Affirmed.

Crosby Johnson, for appellant. The Attorney General, for the State.

GANTT, P. J.

The defendant was indicted at the July term, 1897, of the circuit court of Caldwell county, for the murder of John Miller, in said county, on the 2d day of May, 1897. Defendant was duly arraigned, and entered his plea of not guilty. The cause was tried on the 22d day of March, 1898, and resulted in a verdict of guilty of murder in the second degree, and assessing his punishment at 10 years in the penitentiary. Motions for new trial and in arrest were duly filed, heard, and overruled. Defendant appeals to this court.

Counsel for defendant has presented an elaborate brief, in addition to his oral argument. The facts are not intricate or much complicated. James Dunham, at and before the homicide, was the proprietor of an establishment, in the town of Breckenridge, denominated by all the witnesses as a "dive," — a term synonymous with an unlawful gambling and liquor establishment. Dunham was residing at Nettleton, another town near by, and defendant, McLaughlin, was running the dive for Dunham. John Miller, the deceased, was a farmer, about 21 years old, and lived about two miles south of Nettleton. On Saturday night, May 1, 1897, John Miller came to Breckenridge, and about 11 o'clock that night visited Dunham's dive, and remained there from that time on until 4 o'clock Sunday morning. About this hour all the parties in the dive left, and the defendant closed the dive. The whole crowd, consisting of Dunham, Miller (the deceased), Bales (a farm hand of Miller up to that time), Knight, Lundy, Scott, and defendant, started to the restaurant of Arthur Richardson to get a lunch. The restaurant was in the same block with Dunham's dive, and about 50 feet distant therefrom. The party having reached the restaurant, Dunham knocked on the door, or rattled it, to arouse Richardson. While he was thus engaged, Miller (the deceased) and defendant got into a scuffle. Various accounts are given of the details of this scuffle. Knight, who was standing by Dunham at the restaurant door, says he merely heard the scuffle, and was not particularly attracted until he heard a revolver fired, when he turned and looked, and saw Miller throw up his hands towards his breast, and run towards witness and the others, and heard him exclaim, "Boys, they have done me!" or, "Boys, they have got me!" and defendant said, "Boys, I had to do it," or "I done it in self-defense." This witness immediately ran across the street, and told T. A. Price that Miller was killed. He heard none of the conversation between deceased and defendant during the scuffle. He says that they moved off some distance on the sidewalk during the scuffle. Price immediately dressed, and went across the street, with Dr. Ennis, and found the body of deceased entirely alone. Deceased was dead, with a bullet wound in his heart. He was lying on his back, left arm down by his side, and the right arm folded across his breast, and a large knife, with a metal handle and a hawk bill, lying on his body. While dressing, he saw a man walk towards the prostrate body. He and Dr. Ennis reached it together, and just then he heard some one driving away. The subsequent evidence of defendant himself was to the effect that, after he had shot and killed Miller, he went to his body, and saw that he had a knife in his hand, and he compelled Scott to come up and see the knife; that he took the knife by the blade, and held it up, so Scott could see it. He then says that he jumped into Dunham's vehicle, and drove 11½ miles, to his father's, near Catawba, and then drove on to St. Joseph. He remained there in seclusion until Tuesday evening, and went...