State v. McMullin

• Decision Date: 02 December 1902
• Court: Missouri Supreme Court
• Parties: STATE v. McMULLIN.<SMALL><SUP>*</SUP></SMALL>

71 S.W. 221

170 Mo. 608.

STATE v. McMULLIN.^*

Supreme Court of Missouri, Division No. 2.

December 2, 1902.

HOMICIDE — INSTRUCTIONS — EXCEPTIONS — MURDER IN SECOND DEGREE — PRESUMPTION — DYING DECLARATION — AFFIDAVIT — JURAT—ADDRESS TO JURY—REPRIMAND.

1. Where the evidence showed either murder in the first or second degree, or indubitable self-defense, the verdict of the jury is conclusive, where no error in the instructions or the rulings on evidence is shown.

2. Error in failing to give sufficiently full instructions in a criminal case cannot be considered on appeal, where no exception was taken on the ground that the instructions were insufficient.

3. Under Rev. St. 1899, §§ 2369, 2535, providing that the jury, in a criminal case, may find defendant guilty of any inferior grade of such offense, and that any person found guilty of murder in the second degree shall be punished according to the verdict, although the evidence shows him guilty of a higher degree of homicide, etc., an instruction as to murder in the second degree is proper in a prosecution for murder in the first degree, where the evidence is such that the jury might find defendant guilty of murder in either degree.

4. When a homicide occurs, nothing more appearing, presumptively the crime is murder in the second degree.

5. The use of an opprobrious epithet by deceased to his slayer immediately before the homicide is a fact tending to eliminate the element of deliberation from the crime, and thus reduce it to murder in the second degree.

6. Where defendant in a prosecution for homicide was convicted of murder in the second degree, the giving of an instruction on manslaughter in the fourth degree was not prejudicial.

7. In a prosecution for homicide, an objection made to the introduction of a dying declaration as a whole was insufficient to raise the question of the admissibility of the affidavit or jurat accompanying the statement, and a part thereof.

8. In a prosecution for homicide, where a dying declaration was admitted in evidence, testimony as to a conversation between deceased and his physician about the funeral arrangements of the former was properly admitted, as showing the condition of the mind of deceased, and also as confirmatory evidence of deceased's firm conviction of his impending death.

9. An objection to evidence as immaterial, incompetent, and irrelevant is too general to raise the question of its admissibility on appeal.

10. In a prosecution for murder, the prosecuting attorney said in his argument that a certain defense was "trumped up" by defendant and one of his witnesses, and stated that the witness had been brought into court without a subpoena, like a "cold deck," and was not subpoenaed until the trial began, which was the reason the state did not impeach her. Counsel for defendant objected for the reason that there was no evidence as to when the witness had been subpoenaed. The objection was sustained, and the court admonished counsel to confine himself to the record. Held that, in the absence of any request for a more pointed reprimand, the rebuke was sufficient.

Appeal from circuit court, Clay county; J. W. Alexander. Judge.

Thomas McMullin was convicted of murder, and he appeals. Affirmed.

Farris & Son, Wm. E. Fowler, W. A. Craven, and B. P. Finley, for appellant. The Attorney General, Sam B. Jeffries, and Frank H. Trimble, for the State.

SHERWOOD, P. J.

Twenty years in the penitentiary was the term of imprisonment awarded defendant for shooting to death with a revolver Albert S. Chambers on December 3, 1900; the jury having found defendant guilty of murder in the second degree, when put upon his trial for the first degree of that crime.

The substance and effect of the testimony will be found adduced in the following statement, and such additions as have been made thereto:

The tragedy occurred on the sidewalk at the southeast corner of Broadway and Marietta streets, in the city of Excelsior Springs; the same being the northwest corner of what is known as the "Boston Store." Broadway, 60 feet wide, runs east and west; and Marietta street, 40 feet in width, runs north and south. The bank is located at the southwest corner of these two streets, and its front door is on the corner, so that any one coming out of the door will be facing toward the place where the shooting took place. Defendant and Chambers, the deceased, were both residents of Excelsior Springs. They had had differences over business matters, and for some time had not been on good terms. The afternoon of the shooting, the defendant, in company with Samuel J. Rowell, walked north along the west side of Marietta street to Broadway, the bank corner, where they separated; Rowell going on north across Broadway, while McMullin turned east across Marietta, toward the Boston Store corner. Chambers was walking west along the south side of Broadway, and the two met on the sidewalk at the Boston Store corner. They passed each other a step or two; the deceased turning toward the south, as if to go down the east side of Marietta street. As they passed each other, one of them called the other a son of a bitch. In his dying declaration, Chambers says McMullin said that to him. McMullin, on the other hand, testified that Chambers used the epithet toward him. At any rate, as soon as the word was used, Chambers turned on his left, partially to McMullin, and said: "Go on. I don't want any trouble with you,"—and McMullin fired. Chambers was standing with his hands down by his side, and when the bullet struck him he threw his left hand upon the wound in his breast, his right following immediately, but trembling in the air, as if it were partially paralyzed, and could be raised with difficulty; and then, with both hands clasping his breast, he staggered off the sidewalk diagonally across Marietta street, going in a southwest direction. McMullin put his pistol in his pocket, and, turning, continued his walk leisurely up the street, smoking a cigar. The whole thing happened in an instant. Just time enough for two men to meet, turn, and the shot was fired. Rowell, who separated from McMullin at the bank corner, and who was walking across Marietta, heard the shot before he had gotten entirely across the street. Five days later, Chambers died from the effects of his wound. Examination revealed the fact that the bullet struck deceased between the seventh and eighth ribs, about one inch to the right of the breast-bone. A slight impingement by the bullet upon the flesh immediately to the left of the bullet hole showed that it was undoubtedly fired from a point slightly to the left of deceased. This was also shown by the fact that the bullet, in passing through the vest, struck at the left edge of the button, and passed under the button to the right without injuring it, which it could not have done unless it was fired from a point slightly to deceased's left. Before his death, Chambers made a dying statement or declaration as to what occurred at the shooting. He was informed by his physician and by Capt. Moore, on the morning of the day he died, that his death was certain and near at hand. After realizing fully that he was at the point of death and had no hope of recovery, he dictated his dying statement, and signed it; said statement being in words and figures the following, to wit:

"I, Albert Chambers, realize that I am in a dying condition. I have no hope of recovery; realizing I am in the presence of death, make this as my last and dying statement: I was coming down the street. He (McMullin) said: `You damn son of a bitch! I will kill you.' When he said that, I said: `You go along. I don't want no trouble with you.' I said: `Go on. You leave me alone.' He stopped, took aim, and shot me. I said nothing else. I made no threat or demonstration, and had no weapon. I had nothing in my hand. (Dr. Bogard took my knife from my pants pocket after the shooting.) I am positive I made no demonstration of any kind. McMullin was walking fast, and seemed to be mad. He shot me not two seconds after we met. He took the pistol out of his right hip pocket. He was standing on the out edge of the sidewalk, and I was standing near the middle. The first remark made when we met was, McMullin called me a damn son of a bitch. This was in front of the Boston Store, at Excelsior Springs, Mo.

                                         "A. S. Chambers
                  "T. N. Bogard
                  "James W. Snapp
                  "John King
                  "Josephine Lashley
                

"State of Missouri, County of Clay—ss.: Subscribed and sworn to before me by Albert S. Chambers this 8th day of December, 1900, at 11:30 o'clock a. m. Term expires June 22, 1901.

                  "[Seal.]            Harris L. Moore,
                            "Notary Public Clay Co., Mo."
                

The words, "Dr. Bogard took my knife from my pants pocket after the shooting," inclosed in parentheses, were excluded by the court on its own motion, and said words were not read to the jury.

About three-quarters of an hour later, he expressed his absolute certainty that he was going to die very soon, and had no hope of recovery, and reaffirmed the declaration as it was read over to him sentence by sentence. A third time the statement was gone over with him, and he was asked if he was perfectly certain he was going to die soon, and if his declaration were true; and he again expressed his conviction that death was soon and certain, and declared that his statement was true. Again, just 1 hour and 40 minutes before he died, in the presence of several witnesses, he said he was about to die, and could not recover; and in this solemn moment, when adjured to tell the truth, the whole truth, and nothing but the truth, he reaffirmed his declaration sentence by sentence, and then as an entirety.

At the trial, self-defense was set up; the defendant asserting that the deceased drew a knife and was advancing upon him with arm upraised when he fired, and that, upon receiving the wound, deceased closed his knife, replaced it in his trousers...