State v. Morgan

• Decision Date: 14 February 1876
• Citation: 1 Mo.App. 22
• Parties: THE STATE OF MISSOURI, Respondent, v. WILLIAM MORGAN, Appellant.
• Court: Missouri Court of Appeals

1 Mo.App. 22

THE STATE OF MISSOURI, Respondent,

v.WILLIAM MORGAN, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 14, 1876.

1. Where evidence requiring a formal foundation was introduced without such foundation, no objection on that account having been made at the time by the opposing party, and it is apparent from the circumstances that the foundation could readily have been laid, no objection because of its omission can be presented in the appellate court.

2. If testimony be offered in a form, or for a purpose, which would make it inadmissible, the court is warranted in rejecting it, although part of it might be admissible for a different purpose. The party offering must disincumber the evidence of illegal matter, and confine himself to that which is legal; otherwise, the whole should be excluded.

3. When it is proposed to impeach a witness, by showing former statements inconsistent with his testimony on a matter relevant to the issue, his attention must be called with particularity to the supposed former statement.

4. Upon a motion, supported by affidavits and opposed by counter-affidavits, for a new trial, on the ground of misconduct of the officers of the court, which, if it existed at all, must have been witnessed by the judge, great weight will be attached in the appellate court to the decision of the court below. In such cases the latter is almost the final arbiter.

APPEAL from the St. Louis Criminal Court.

Affirmed.

S. D. McCormack, for appellant, cited: State v. Shields, 13 Mo. 236; Day v. State, 13 Mo. 422; State v. White, 35 Mo. 500; Deer v. State, 14 Mo. 348; State v. Boswell, 2 Dev. 209; McComb v. State of Ohio, 8 Ohio St. 643; Ros. on Cr. Ev. sec. 716; 1 Ph. on Ev., sec. 762; Evans v. Smith, 5 Mon. 363; Peck v. State, 2 Humph. 78; Miller v. The People, 39 Ill. 459; State v. Merrell, 2 Dev. 269; State v. Dominique, 30 Mo. 585; McMillen v. State, 13 Mo. 30; McDaniels v. State, 8 Smed. & M. 401; People v. Greene, 1 Park. (N. Y.) Cr. 11; People v. Knickerbocker, 1 Park. (N. Y.) Cr. 302; Hill v. Commonwealth, 2 Gratt. (Va.) 594; Smith v. State, 9 Humph. 9; Montgomery v. State, 11 Stan. (O.) 424; State v. Mansfield, 41 Mo. 470; State v. Bird, 1 Mo. 585; Davis v. State, 2 Humph. 439; State v. Jones, 2 Bay (S. C.), 520; Keither v. State, 10 Smed. & M. 192; Cochran v. State, 7 Humph. 544; State v. Connell, 49 Mo. 282; State v. Sims, Dudley (Ga.), 213; State v. Sartor, 2 Strobh. (S. C.) 60; United States v. Duval, Gilp. 356; State v. Hammond, 5 Strobh. (S. C.) 91; State v. Packwood, 26 Mo. 340; Copeland v. State, 7 Humph. 479; State v. Cruise, 16 Mo. 391; Grayson v. Commonwealth, 7 Gratt. (Va.) 613; State v. Lyon, 12 Conn. 487; State v. Fisher, 2 Nott & M. (S. C.) 261; State v. Prescott, 7 N. H. 287; Berry v. State of Georgia, 10 Ga. 511; 3 Whart. Cr. Law, secs. 3157-3160; State v. Hascall, 6 N. H. 353; Yoe v. People, 49 Ill. 410; Witehum v. State, 11 Ga. 615; Fuller v. Scott, Whart. Dig. 355; McLean v. State, 8 Mo. 153; Weber v. State, 22 Mo. 321; McKinney v. The People, 2 Gilm. (Ill.) 541; Gibbons v. The People, 23 Ill. 518; Bolls v. State of Mississippi, 13 Smed. & M. 398; Hale v. State, 4 How. (Miss.) 187; Commonwealth v. Wormly, 8 Gratt. (Va.) 712; McLain v. State, 10 Yerg. 241; Perkins v. Knight, 3 N. H. 474; McCann v. State, 9 Smed. & M. 465; Kirk v. State of Ohio, 14 Ohio, 511; Jumpertz v. The People, 21 Ill. 409.

W. F. Rogers, for appellant, cited: 1 Greenl. on Ev., sec. 158; Smith v. State, 9 Humph. 9; 2 Stark. on Ev. 460; State v. Shields, 13 Mo. 236; Deer v. State, 14 Mo. 348; Norris v. State, 16 Ala. 776; State v. Cushing, 29 Mo. 215; Fisher v. People, 23 Ill. 283; Hobbs v. People, 31 Ill. 385; State v. Felter, 25 Iowa, 67; Stevens v. State, 31 Ind. 485; McFarland's Case, 8 Abb. Pr. (U. S.) 69; Harris' Case, 22 Am. Jour. Insanity, 334; Commonwealth v. Haskell, 2 Brews. (Pa.) 491; Smith v. Commonwealth, 1 Duv. (Ky.) 224; State v. Pike, 49 N. H. 399; Ray's Med. Jur., sec. 44; Hines v. State, 8 Humph. 597; Berry v. State, 10 Ga. 511; 1 Park. (N. Y.) Cr. 256.

J. C. Normile, Circuit Attorney, for respondent, cited: People v. Sanchez, 4 Park. (N. Y.) Cr. 555, 556; State v. Klinger, 46 Mo. 220; People v. Thurston, 2 Park. (N. Y.) Cr. 49; State v. Holme, 54 Mo. 164; State v. Hundley, 46 Mo. 417; State v. Connell, 49 Mo. 282; State v. Cook, 58 Mo. 545; State v. Floyd, 15 Mo. 349; State v. Smith, 31 Mo. 566; Beale v. Cullum, 31 Mo. 258; State v. Dunn, 18 Mo. 419; State v. Crawford, 34 Mo. 200; State v. Smith, 53 Mo. 267.GANTT, P. J., delivered the opinion of the court.

William Morgan was convicted of the murder of his wife, at the March term, 1875, of the St. Louis Criminal Court. Several exceptions were saved at the trial to the admission and exclusion of evidence, and some objections are urged in this court in respect of which no exception was saved. We enumerate them in their order.

1. Mrs. Rose, a sister of the deceased, was examined by the State, and among other things, speaking of her sister, she said: “She stated, just before her death, ‘Morgan has stabbed me; what will become of our child?” No objection was made to this evidence at the time. A point is made on it in this court.

2. On cross-examination of Mrs. Rose, defendant's counsel “offered to prove by her that deceased and herself left their homes, procured a house on Fifteenth street, and were keeping, under assumed names, an open and notorious house of prostitution, and that defendant's infant daughter, contrary to his wishes and without his knowledge or consent, was kept by her mother in said house; that this testimony was sought to be introduced for the double purpose of affecting the credibility of the witness and also as having a tendency to affect defendant's mind; the facts of the prostitution of deceased and witness having been brought to his knowledge by a discovery of their whereabouts.” The court refused this offer and defendant's counsel excepted.

3. Defendant's counsel asked the following questions, which the court excluded, defendant excepting:

“What business, if any, were you and Mrs. Morgan engaged in while you resided at the house on Fifteenth street, and what was the business of Mrs. Mills, and were you not engaged in the business of prostitution, and how long did yourself, Mrs. Morgan, and Mrs. Mills continue in such business at that house?”

Did not Mrs. Morgan, the deceased, abandon her husband, and was she not at the time of her death, and for weeks previous, in an open and notorious state of adultery with one Stevens, the man in whose company she was on the day of the alleged homicide, and were she and said Stevens, at the time of said homicide, not engaged in purchasing second-hand furniture for the purpose of furnishing a house of prostitution to be kept by Stevens and deceased?”

4. Counsel for defendant sought to show by witness that there was a conspiracy formed between witness, Mrs. Morgan (the deceased), and said Stevens, and other persons of immoral character, to defraud defendant of his property and to prevent him from recovering possession of his infant daughter, aged eleven years, who was then in the custody of said parties, and by them kept in a house of prostitution. The court excluded such evidence, and defendant excepted.

5. In the course of Mrs. Rose's examination-in-chief, she stated, without objection, referring to her sister: “She had made application for a divorce.” After the close of her examination the circuit attorney made an effort to show that a petition for a divorce had been filed by Mrs. Morgan in the St. Louis Circuit Court. The defendant objected to this for irrelevancy. The court overruled the objection, and defendant excepted. It does not appear that the circuit attorney followed up his offer and gave any such evidence.

6. Defendant offered to prove by one of his own witnesses “that Mrs. Morgan, Mrs. Rose, and Stevens had been to her house a short time, four or five days, before the homicide; that they seized hold of Morgan, the defendant, and, in his efforts to escape from them, tore a good portion of his clothes from his person; that he fled from them in great terror, and that the effect of said assault upon the defendant was to greatly aggravate his afflicted condition.” The court refused this offer, defendant excepting.

7. By another witness he offered to prove “that Mrs. Rose and Mrs. Morgan were prostitutes, and were keeping a house of prostitution on Fifteenth street, in connection with other lewd women and persons of immoral character; that they had defendant's child in their custody, and were conspiring against the life of the defendant.” The court refused this offer, defendant excepting.

8. By another witness defendant offered to prove “that the statements made by Mrs. Rose, on the stand, in regard to her conversations at Mr. Rogers' office, on those occasions, were false in every particular.” The court excluded this evidence, defendant excepting.

9. Dr. C. H. Hughes, a physician, having testified that he had been present in court during the whole trial, except while the two first witnesses testified, was asked, “as a medical expert,” to state his opinion in regard to the sanity of the defendant during the month of July, 1874, and about the time of the alleged homicide.” The court refused to allow the question in that form, and directed the defendant counsel to ask the witness a hypothetical question, reduced to writing. The defendant excepted, and asked for an hour in which to prepare such a hypothetical question. The court refused to allow more than half an hour; and defendant again excepted. But the court, in point of fact, allowed his counsel two hours for this purpose. The hypothetical question was prepared, and the expert was examined upon it at length.

10. The evidence being closed, the court gave a series of instructions, to which defendant excepted, and defendant asked five instructions which the court refused, defendant excepting.

11. The jury having found a...