State v. Parker

• Decision Date: 26 November 1888
• Citation: 9 S.W. 728,96 Mo. 382
• Parties: The State v. Parker, Appellant
• Court: Missouri Supreme Court

9 S.W. 728

96 Mo. 382

The State v. Parker, Appellant

Supreme Court of Missouri

November 26, 1888

Appeal from Buchanan Criminal Court. -- Trial before Hon. C. A Anthony, Judge of the Twenty-Ninth Judicial Circuit.

Reversed and remanded.

Ramey & Brown for appellant.

(1) After the application for change of venue had been filed the judge of the Buchanan criminal court had no jurisdiction to make any order in said cause except to grant the change and order an election for a special judge, as provided by section 1878, Revised Statutes, or, if in his opinion, at the time the application is granted the cause is of the character contemplated by section 1881, Revised Statutes, he need not order an election, but may request the judge of some other circuit to hear the cause. R. S., 1879, secs. 1878, 1881. Having granted the change and ordered an election the judge could not legally go upon the bench seven or eight days afterwards, call the case and set it down for trial and request the judge of his own selection to try the cause. Such action would not give the judge so called jurisdiction of the cause. See State v. Shipman, 93 Mo. 147. (2) The only issued to be tried before said C. A. Anthony, upon the application for a change of venue, was whether or not the inhabitants of Buchanan county were prejudiced against the defendant so as to prevent his having a fair trial. State v. Burgess, 78 Mo. 234. (3) The evidence as to the post presented several issues to the jury that were not properly in the case, and was calculated to do the defendant great harm. "The horn books of the profession announce the doctrine that 'the evidence must correspond with the allegations and be confined to the points in issue.'" State to use v. Roberts, 62 Mo 390. In criminal cases the necessity is stronger, if possible, than in civil cases, of strictly enforcing this rule. See 2 Russell by Greaves, p. 772; 1 Phill. Ev. [7 Ed.] 178; Roscoe's Crim. Ev. 81; 1 Greenl. Ev. sec. 50; State v. Umfried, 76 Mo. 404. (4) The statement of witness Harper as to what, defendant told him the day before the homicide about the post should have been excluded. It did not tend to prove any issue in the case and was calculated and intended to draw away the minds of the jury from the issue, to mislead them and to excite prejudice against the defendant. See 1 Greenl. Ev. sec. 52; State v. Umfried supra. (5) Dying declarations are only admissible in evidence when the death of the deceased is the subject of the charge and the circumstances of the death are the subject of the dying declarations. Roscoe's Crim. Ev. 28, 32; 1 Greenl. Ev., sec. 156; 1 Stark. Ev. 32; Brown v. State, 46 Ind. 311; State v. Montgomery, 3 Crim. Law Mag. 523; State v. Jefferson, 77 Mo. 136.

B. G. Boone, Attorney General, for the State.

(1) Where testimony is offered, for and against a motion for a change of venue on account of the prejudice of the inhabitants of a county, and the motion is overruled, this court will not interfere with the action of the trial court unless palpable injustice to the defendant is manifest from the record. State v. Guy, 69 Mo. 430; State v. Burgess, 78 Mo. 234; State v. Brownfield, 83 Mo. 448; State v. Wisdom, 84 Mo. 184; State v. Wilson, 85 Mo. 134; State v. Holcomb, 86 Mo. 381. (2) It was sufficient that the jurors disclaimed bias or prejudice when examined on their voir dire as to opinions formed on the issue to be tried and upon the question of the guilt or innocence of the accused. R. S. 1879, sec. 1897; State v. Brooks, 92 Mo. 542. (3) The statement of David C. Montgomery made to members of his family and others after the shooting and before his death, were clearly made in extremis, and were admissible as dying declarations. 1 Greenl. Ev. secs. 156 and 162; Whar. Cr. Ev. [8 Ed.] sec. 276; State v. Jefferson, 77 Mo. 136; State v Vansant, 80 Mo. 67; State v. Chambers, 87 Mo. 406; State v. Partlow, 90 Mo. 608. (4) The admission of evidence, by the trial court, as to whether the post and wire, in controversy between Parker and Montgomery, were in a public road or a private way, did not prejudice defendant, and he will not be heard to complain. State v. Holme, 54 Mo. 160; State v. Grate, 68 Mo. 22.

Sherwood, J. Norton, C. J., concurs in all the paragraphs of this opinion except the last. Black and Brace, JJ., concur; Ray, J., absent.

OPINION

Sherwood, J.

The defendant, indicted for the murder of Davis C. Montgomery, was convicted of the offense of murder in the second degree, and he appeals here, alleging many errors. The history of the homicide, as disclosed by the record, whether favorable to the prosecution or favorable to the defense, is as follows: The deceased and the defendant, both farmers, lived on adjoining tracts of land in Center township, Buchanan county, Missouri. A misunderstanding had arisen between them in regard to a post, which, it is said, defendant had set in the public road, and connected it with a barbed-wire to his line of fence, so as to render it inconvenient for Montgomery to reach his house by way of a private road leading into the public road. On Sunday, May 23, 1886, the deceased and the defendant met in the public road in front of defendant's farm and about one-eighth of a mile from their respective houses. On meeting each other, they had some conversation in regard to the removal of the post, when an altercation arose between them, which resulted in Montgomery being shot by defendant and killed.

When the wife and sons of Montgomery reached the scene of the homicide, he was found lying on the ground unable to rise; his face was cut and he had a gun-shot wound through one of his lungs. He said to his wife that he was bound to die; that he was not long for this world; that Gaines Parker and Frank Parker had waylaid him. After shaking hands with all, he said again, he must die. "He then prayed God to forgive his sins, and have mercy on his wife and children, and enjoined his two elder sons to be good boys and take care of their mother and the little children;" continuing in regard to the difficulty he said that Gaines Parker, the defendant, had met him in the road and said: "I see you are trying to get into trouble with me about that wire?" Deceased replied: "No, I am not, I don't want any trouble with you;" Parker then said: "You want the wire moved, do you?" To which deceased replied: "I don't think that it is any more than right that it should be moved, but I don't want any trouble with you; I am sorry that I ever had; I would not have had if you hadn't said that Joe (deceased's son) had no character;" the defendant then said to the deceased, that Frank (defendant's son) was not far off, and "that we [defendant and son] are here watching for you;" defendant then called his son, who came running out of the brush near by with a club and some stones, and he struck deceased on the head, stunning him and knocking him down, after which, while he was yet down, Frank, the son, kicked him in the face; deceased said he would surrender, but defendant drew out a pistol and shot him, and turned and shot at a small boy, one of the sons of the deceased, who came up during the difficulty and struck at defendant with a small steel trap which he carried in his hand; deceased having been shot through the lungs, spoke slowly, and with great difficulty, and a half hour or more was consumed by him in stating the above facts; his family insisted on taking him home, but he said he could not be moved, that he would have to die right there on the ground; he was put in a wagon, however, and hauled to his residence about one-eighth of a mile distant, where he died at twelve o'clock m. of that day, from the gun-shot wound inflicted by defendant.

The evidence on the part of defendant was to the effect that upon the day of the difficulty, he and deceased met in the public road and entered into conversation as before stated; that upon defendant giving deceased the lie in response to some charge the deceased made, the deceased knocked him down, and inflicted on him such serious personal injuries as to cause him to call on his son Frank, who was then at his father's house half a quarter of a mile distant, to come to his assistance; that Frank's attention was called to the cries of his father for help by his mother, and that he immediately ran to the place of the difficulty, and when he got there he saw his father lying on his back in the fence corner, with blood running over his face and eyes, and that at that time, the deceased, Montgomery, was on his father with his knees planted on his breast and striking him with his fist; that when Frank requested deceased to get off of his father, he refused to do so, but insisted that Frank should not get over the fence, and for the purpose of preventing him from getting over the fence raised up off of the defendant and pushed Frank from off the fence; that the defendant had been severely injured and was then blinded by the gouging that deceased had given him, and by the blood that was running in his eyes; that when the deceased resisted the attempt of Frank to get over the fence and relieve his father, and refused to get off the defendant, Frank threw a rock which he had picked up on his way to the place of the difficulty, and hit the deceased on the back of the head, and then jumped over the fence and kicked him in the face which knocked him off of his father, and that the defendant then immediately shot; that at about the time that Frank got to the place of the difficulty, Charles and Thomas Montgomery, two sons of the deceased, got there also; that Charles, the oldest one of the boys, had a steel trap in his hands and had hold of the chain of said trap, and was striking and swinging it at the defendant, and that the...