State v. Powell

• Decision Date: 04 December 1919
• Docket Number: No. 21540.,21540.
• Parties: STATE v. POWELL.
• Court: Missouri Supreme Court

217 S.W. 35

STATE v. POWELL.

No. 21540.

Supreme Court of Missouri, Division No. 2.

December 4, 1919.

Appeal from Circuit Court, Lincoln County; Edgar B. Woolfolk, Judge.

Benjamin Powell was convicted of manslaughter in the fourth degree, and appeals. Affirmed.

Howell & Jackson and W. H. Jackson, Jr., all of Troy, for appellant.

Frank W. McAllister, Atty. Gen., and Henry B. Hunt, Asst. Atty. Gen., for the State.

WHITE, C.

The defendant was charged by information with murder in the first degree in having killed one Otis Redmon in Lincoln county May 28, 1917. The jury found the defendant guilty of manslaughter in the fourth degree and fixed his punishment at two years' imprisonment in the penitentiary, and from the judgment thereupon rendered he appealed.

The deceased and appellant were colored boys, the deceased about 17 years of age. The evidence shows that he, with one Ralph Bouldin, was in a buggy driving near the restaurant of Mrs. Bouldin, colored, in the city of Troy, when they met the defendant, who demanded of the deceased to know what he (deceased) had done with the defendant's whisky. Redmon's reply was that he had "drinked it," apparently deeming that a reasonable explanation of its disappearance. Powell was not satisfied with that explanation, threatened to knock Redmon's "block off," and attempted to put the threat into execution by dragging Redmon from the buggy. It appears they were separated, and Sam Redmon, the brother of Otis, led the defendant away. Immediately afterward Otis Redmon followed the two. Powell detached himself from the hold of Sam Redmon, and he and Otis engaged in a fight. After it was over it appeared that Otis was fatally stabbed, and he died in a few minutes from the wounds thus received. About 45 minutes after the affray the defendant was arrested eight miles from Troy by the sheriff. A pocketknife was found on his person, and he had at the time a cut in his left arm and another in the little finger of his right hand; also a cut in his head and the front part of his shirt. A bloody razor was found that evening after the affray at the place where it occurred, as appears by the testimony of two witnesses who examined it and put it back. It remained there until the day before the trial, some six months later. Other details of the fight are unnecessary to a consideration of the questions presented, except such facts as will be mentioned in considering the questions raised.

I. On the ground that it was not first proven that death was impending and that Otis Redmon knew he was about to die, appellant assigns error to the action of the trial court in permitting two witnesses, one Dug Morris and a physician, Dr. S. R. McKay, to testify to an alleged dying declaration of Otis. The question first arose in taking the testimony of Dr. McKay. He testified that Redmon was in a dying condition. While he was stuffing gauze into the wound in order to staunch the flow of blood, Redmon said, "Let me alone; I'm dying." The physician testified, "He looked to me like he was about gone, Judge, very little life in him." At the same time or immediately after that statement some one said, "Who cut you?" and the dying man said, "Ben Powell." He died within three minutes after that. This was entirely sufficient to show, not only the dying condition of the wounded man, but his consciousness of his condition at the time he made the statement. State v. Livingston, 204 S. W. 262; State v. Craig, 190 Mo. loc. cit. 340, 88 S. W. 641; State v. Finley, 245 Mo. loc. cit. 473, 150 S. W. 1051; State v. Kelleher, 201 Mo. loc. cit. 637, 100 S. W. 470. In this connection appellant makes the point that the deceased was not a believer in God, and therefore his statement should not have been received, on the theory, we presume, that, if present and testifying, he would not be a competent witness. No authority is presented in support of this statement of the law, but it is unnecessary to consider it, because there was no offer of proof by the defendant to show what were Otis Redmon's religious beliefs.

II. The state in rebuttal called one Dr. W. P. Smith, who testified that he called at the county jail to treat the injuries of the defendant. He found that he had a cut on his wrist and a cut on the back of his little finger on the left hand, and gave his opinion that these wounds on the defendant were not caused by a sharp cutting instrument, but that they were ragged and resembled barbed wire cuts, a number of which the physician had seen. Defendant assigns error to the action of the court in admitting the testimony because in violation of section 6362, R. S. 1909. Dr. Smith testified without objection to the character of the wounds, and gave his opinion that they were not caused by a sharp cutting instrument. When asked for further explanation, objection was made. After the objection was made no material additional information was sworn to by Dr. Smith. The objection was not timely, and the privilege was thereby waived.

III. The defendant claims the court committed error in refusing to permit him to show in evidence the hat and shirt worn by him—the hat and shirt having cuts in them. It was entirely proper to admit this evidence if proper foundation had been laid for it. The ruling, as shown by the record, did not exclude it absolutely. When the offer was made, the prosecutor, Mr. Kilham, objected to the evidence "at this time for ;the reason that no connection has been shown between the condition of the hat offered and any act on the part of the deceased." This objection was sustained. The defendant was not sworn, and there was no evidence offered to show that the cuts in the garments were received at the time of the difficulty, nor was it shown that the garments were worn at that time. The nearest approach to identification in that respect was the testimony of the sheriff who swore that Powell wore those garments at the time he was arrested, some 45 minutes after the fight and eight miles distant from the place where it occurred. It seems as if it would have...