State v. Parker

• Decision Date: 24 February 1903
• Citation: 72 S.W. 650,172 Mo. 191
• Parties: STATE v. PARKER.
• Court: Missouri Supreme Court

72 S.W. 650

172 Mo. 191

STATE v. PARKER.

Supreme Court of Missouri, Division No. 2.

February 24, 1903.

CRIMINAL LAW — HOMICIDE — EVIDENCE — DYING DECLARATIONS OF DECEASED — ADMISSIBILITY — ANTECEDENT TRANSACTION — RES GESTÆ — WITNESSES — REPUTATION — PEACEABLENESS — CROSS-EXAMINATION — INSTRUCTIONS — DEFINITIONS — REQUESTS — REVIEW.

1. Where surgeons had advised deceased that he could not live, and the scrivener who took down his statements was summoned to the hospital because the surgeons regarded his death inevitable, and he stated that he believed he was mortally wounded, and in the immediate presence of death, and without hopes of recovery, his statement was admissible, in a prosecution for his homicide, as a dying declaration, though his wife denied that he thought he was going to die when he made the statement.

2. Statements in a dying declaration that deceased had never made any threats against defendant in his life; that deceased had not touched a drop of liquor for over a month; knew no reason why defendant shot him, except

as stated; never had made any threats against defendant, and did not think defendant was going to shoot him, as he had never given him any cause to shoot him, and that he had never had a quarrel with defendant — were inadmissible as referring to matters anterior to the killing, and not a part of the res gestæ.

3. In a prosecution for homicide, statements in deceased's dying declaration that just prior to the firing of the fatal shot he saw defendant was mad, and that that was the first he knew that he was mad, and that deceased spoke first to defendant, and asked him what he was mad about, were admissible as res gestæ.

4. An instruction that decedent's dying declaration should be received by the jury as such, but that the jury were not bound to believe it because it was a dying declaration, but they were to give it such weight as they thought it should have when considered in connection with the other facts and circumstances in evidence, was proper.

5. It was not error to refuse instructions requested, the subject of which was fully covered by the instructions given.

6. Where, in a prosecution for homicide, defendant had introduced his son as an eyewitness on the first trial of the cause, and on the second trial did not offer the son as a witness, it was not error for the prosecuting attorney in argument to refer to such fact simply by asking the jury why the son was not produced.

7. An instruction that if the jury found that defendant willfully, premeditatedly, and of his malice aforethought, did, with a revolving pistol, etc., shoot deceased, and inflict on him a mortal wound, they should find him guilty of murder in the second degree, and then defining each of the words "willfully," "premeditatedly," and "malice aforethought," was not erroneous for failure to use the word "feloniously."

8. In a prosecution for homicide it was not error to refuse to permit defendant to prove that at the time witness heard deceased make a threat against defendant, 18 months prior to the homicide, in defendant's absence, deceased had a knife in his hands.

9. Where, in a prosecution for homicide, a witness had testified to defendant's good general reputation for peaceableness, it was proper to permit the state on cross-examination to ask him whether or not he had heard of particular acts of defendant tending to show that he was not a peaceable, law-abiding citizen.

10. Where, in a prosecution for homicide, a witness had testified that defendant had a good general reputation for peaceableness, a question, on cross-examination, as to whether witness had heard that when defendant ran a saloon in the T. House he had gotten into a shooting scrape, and shot four times at a man, and the bullets lodged in the wall, was objectionable in so far as it referred to the particulars of the number of shots fired, etc.

Appeal from criminal court, Jackson county; Jno. W. Wofford, Judge.

James W. Parker was convicted of murder in the second degree, and he appeals. Reversed.

From a conviction of murder in the second degree in the criminal court of Jackson county at the September term, 1901, of said court, the defendant prosecutes this appeal. The indictment was preferred on the 27th day of October, 1900, and the defendant was duly arraigned, and pleaded not guilty. He was tried at April term, 1901, and convicted of murder in the second degree, but a new trial was granted, and the case was again tried at the September term of that year, and again resulted in a conviction of murder in the second degree. It is not deemed necessary to reproduce the indictment, as it is in all respects sufficient, and such as has met the approval of this court on numerous occasions. The facts developed on the trial were substantially the following: The defendant was the father-in-law of the deceased, Edward R. Carl, and on the day of the homicide, the 9th day of June, 1900, they were, and had been for some months, both residing in the same house, No. 1240 Jefferson street, in Kansas City, Jackson county, Mo. The defendant was the proprietor of the house, and the deceased and his wife were staying with him; the deceased having no regular employment at the time, but was assisting in a general way about the house. The defendant was keeping a boarding house at the time. The defendant's evidence and the dying declaration of the deceased were the only testimony as to what occurred at the time of the homicide. The defendant testified that on the morning of the 9th day of June, 1900, he arose somewhere between 7 and 7:30 o'clock, and went to a closet in the back yard of the premises, and, returning, went upstairs to wash in a room in which deceased was dressing himself. He testified that he went to a washstand, picked up a washbowl, and emptied the water into a receiver, and started to or picked up a pitcher of water to put some water in the bowl to wash. Just then Carl, the deceased, said, "I am going away to-day," to which defendant replied: "I am very glad of it. Sallie [the wife of deceased] will have some satisfaction." Deceased said, "You old s____n of a b____h, I will fix you now." "I turned, and as I turned he kicked at me. I went on, and when I got down on the steps four or five steps, at the turn of the stairs, the banisters came around, and I turned my head around. Mr. Carl [the deceased] was coming right on, and I turned my head around. Carl was coming right on, and said, `You old s____n of a b____h, I will cut your guts out.' He had a razor in his hand. I reached back in my pocket this way (indicating), and shot. I didn't know whether I hit the man or not. I didn't take any aim. When I got down to the bottom of the steps, I met my son and daughter. When I went out to the closet, I had on my pants, shoes, and stockings, and my undershirt. I had my pistol in my right hip pocket. I had my pistol in my pocket when I went upstairs. When I entered the front room up stairs — the southeast room — Carl was wiping his face with a towel at the washstand, which stood a little past the center of the room on the east side. When Carl said, `I'll fix you now,' I turned, and as I turned he kicked at me. I walked straight out, and he reached over, and picked up his razor with his left hand. I was 2 or 3 feet from him when he reached for the razor, and probably 4 or 5 feet from me when I got to the door of the room, east of me. We were both walking. I went out, and turned to the right, to go down the steps. I got down four or five steps, when I shot him. He was still at the top of the steps. He didn't make a swipe at me, but had the razor in his hands. When I shot, my back was to him, and in a northwestern direction from him 4 or 5 steps." Defendant also testified that Mrs. Steele, some two or three weeks prior to the homicide, told him deceased had said he intended to kill him before he left his house, and that Mr. and Mrs. Bradley had also communicated to him threats made by deceased against him. Defendant testified he met his daughter and son, Jim Parker, at the foot of the stairs immediately after he shot. That James had testified on the former trial that he was eyewitness to the shooting.

The dying declaration of the deceased described the homicide as follows: "Kansas City, June 9th, 1900. I, Edward Carl, realizing and believing that I am mortally wounded, and in the immediate presence of death, and that I have no hopes of recovery, make this statement of the circumstances of my shooting: I was upstairs in the room of Robinson and Wright, second floor, 1240 Jefferson street, this morning, when Mr. Parker came up. I had been in the room about ten or fifteen minutes — long enough to shave, and had shaven — and was standing close to the mirror, wiping my face, when Mr. Parker came upstairs. The first thing he said was, `Are you going to leave here?' I said, `Right away; I am fixing to go now.' I saw he was mad. That was the first I knew he was mad. He said, `Go right at once, or I will see that you do.' I said, `I am going right now.' He then walked downstairs. I had finished wiping my face, and had started into another room, where the wardrobe was, to get another pair of trousers to put on. I had just gotten between the doors of the two rooms, and right by the head of the stairs, when he came up the stairs. I saw him first when he was about three or four steps from the top. I spoke first, and said: `What in the world is the matter with you, Jim? What are you made about?' He said, `I will kill you,' and I think he said, `you son of a bitch,' in addition; something like son of a bitch, anyway. He shot just after he uttered this threat. I had turned and faced him when I saw him coming. I had on neither coat nor vest, and my hands were hanging naturally by my side. I had no weapons on me, and was not expecting trouble of any kind. When he shot, I rushed into the room where the wardrobe was, and slammed the door to, and held it. He...