State v. Morgan

• Citation: 95 S.W. 402,196 Mo. 177
• Parties: STATE v. MORGAN.
• Decision Date: 22 May 1906
• Court: United States State Supreme Court of Missouri

95 S.W. 402

196 Mo. 177

STATE v. MORGAN.

Supreme Court of Missouri, Division No. 2.

May 22, 1906.

1. WITNESSES — CONFIDENTIAL COMMUNICATIONS —CONFESSIONS TO CLERGYMAN.

Under the express provisions of the statute, in order to make statements to a minister of the gospel inadmissible, they must be made to him in his professional character and in the course of discipline enjoined by the rules of practice of the denomination.

2. CRIMINAL LAW — APPEAL — NECESSITY OF OBJECTIONS—INSTRUCTIONS.

The giving and refusing of declarations of law will not be reviewed on appeal, where the record shows no objections or exceptions to the declarations.

3. HOMICIDE—INFORMATION—SUFFICIENCY.

Though an information is defective as one charging murder in the first degree, by omitting in the closing part a charge that it was made upon the oath of the prosecuting officer, it is sufficient to charge manslaughter.

Appeal from Circuit Court, Howell County; Wm. W. Evans, Judge.

Isom Morgan was convicted of manslaughter in the fourth degree, and he appeals. Affirmed.

This cause is here upon appeal from a judgment of the Howell county circuit court convicting the defendant of manslaughter of the fourth degree. The information upon which this judgment rests was properly verified, and, omitting formal parts, is as follows: "M. E. Morrow, prosecuting attorney within and for the county of Howell, in the state of Missouri, informs the court that one Isom Morgan, on the 2d day of August, A. D. 1904, at the said county of Howell, in and upon one Thomas Morgan, then and there being, feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought did make an assault, and with a certain knife, which he, the said Isom Morgan, in his two hands then and there had and held, him, the said Thomas Morgan, feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought did strike, stab, and thrust in and upon the side of the body, giving to the said Thomas Morgan then and there with the knife aforesaid, in and upon the side of the body of him, the said Thomas Morgan, one mortal wound, of the length of one inch, of the breadth of one inch, and the depth of three inches, of which said mortal wound the said Thomas Morgan then and there died; and so the prosecuting attorney aforesaid says and charges that the said Isom Morgan him, the said Thomas Morgan, in the manner and by the means aforesaid, feloniously, willfully, deliberately, premeditatedly and of his malice aforethought did kill and murder, against the peace and dignity of the state." Prior to the trial the prosecuting attorney elected to prosecute defendant for murder of the second degree, instead of murder of the first degree, which is attempted to be charged in the information. Defendant entered his plea of not guilty and the trial proceeded.

The evidence on the part of the state tends to show substantially the following state of facts: That the defendant lived on a farm which cornered with the farm of deceased, and the defendant's dwelling was near to said corner. That on the afternoon of the homicide the deceased was working in his tobacco patch near defendant's fence, hoeing tobacco. That the defendant sent his children to run off some cattle belonging to one Chestnut, and deceased stopped said children, threatened to whip them, and ordered them back to defendant's house. This seemed to anger defendant, who went down towards the tobacco patch, climbed two fences, and soon got in a quarrel with deceased. As to what occurred during the fatal difficulty, defendant stated to James Chestnut and J. S. Griffith that the devil had got into him (defendant), and had been for a week; that he got mad because deceased had threatened to whip his (defendant's) boy for dogging some cattle; that he went down to the tobacco patch intending to stomp deceased into the earth; that he told deceased what he thought of him, and deceased came at defendant with a hoe; that, after deceased struck defendant with the hoe, defendant drew his knife, and deceased drew his knife; then both agreed to put up their knives, and had a fight, first one on top, and then the other; that deceased agreed to quit if defendant would let him up; that defendant did so, and deceased got up, walked off a short distance, and fell. Mr. Chestnut further testified that defendant said that, when he first drew his knife, he thought he would rip deceased's guts out, and then he concluded he would not. Shortly after the cutting, defendant's wife and others came, arriving at the tobacco patch about the time of the death of deceased. The body was found some 12 steps from the fence, and the blood on the ground and the condition of the ground indicated that there had been a struggle there. There were three wounds on deceased. Two were on his arm, and the other on his left breast.

The evidence for the defendant tended to show that he and deceased were not on friendly terms; that they had had frequent quarrels and fights; that deceased, who was a member of the Holiness Church and quite religiously inclined, tried to impose on defendant and tried to boss defendant's children; that deceased had often threatened defendant, and on two different occasions outsiders had to intervene and prevent deceased from injuring defendant. There was also evidence to the effect that deceased was a man of bad reputation, so far as peace and order were concerned. The defendant testified that he was at his house when he discovered Chestnut's cattle come up to this fence, so he sent his children with a pup down there to run them off; the children soon returned, saying that deceased would not let them run the cattle, and threatened to whip them; that defendant thought he would go down there and reason with deceased, so he climbed up on the fence and asked...