State v. Ramsey

• Decision Date: 30 April 1884
• Citation: 82 Mo. 133
• Parties: THE STATE v. RAMSEY, Plaintiff in Error.
• Court: Missouri Supreme Court

82 Mo. 133

THE STATE

v.RAMSEY, Plaintiff in Error.

Supreme Court of Missouri.

April Term, 1884.

Error to Stoddard Circuit Court.--HON. R. P. OWEN, Judge.

AFFIRMED.

S. M. Chapman for plaintiff in error.

The indictment is defective in its attempt to locate the alleged mortal wound. The averment is not only inconsistent, but is an impossible statement. 1 Bishop C. P., (3 Ed.) §§ 486, 488; 2 Bishop, §§ 522, 525; 1 Greenleaf Ev., 65; Comm. v. DeJardin, 126 Mass. 46; State v. Curran, 18 Mo. 320. It was error to admit the testimony of the witness Lance, as to the attack made by defendant on him. State v. Goetz, 34 Mo. 91; State v. Daubert, 42 Mo. 246; State v. Harrold, 38 Mo. 496. The court should have allowed the witness Gillies to answer the question asked by defendant whether the latter was drunk or sober at the time of the difficulty. 1 Bishop C. P., (6 Ed.) §§ 285, 291, 414; People v. Eastwood, 14 N. Y. 562. It was error to admit the evidence that the deceased, just prior to the accident, “looked scared” and “as if he wanted to get away.” McAdora v. State, 59 Ala. 93, 94; Gassenheemer v. State, 52 Ala. 314; Johnson v. State, 17 Ala. 623. The court erred in refusing the right to defendant's counsel to present their evidence in the order they desired. Byrd v. State, 1 How. (Miss.) 250; McCurdy v. Terry, 33 Ga. 55; Palmer v. McCafferty, 15 Cal. 335; Tinnin v. Garrett, 4 S. & M. 208; Carter v. Carter, 9 Gill & J.; State v. Fulkerson, 10 Mo. 681. The trial court should have instructed the jury as to manslaughter. There was evidence tending to prove a lower grade of manslaughter. State v. Banks, 73 Mo. 592; R. S., §§ 1244, 1250; Wharton on Homicide, (2 Ed.) §§ 4, 5; State v. Branstetter, 65 Mo. 149; Crawford v. State, 12 Ga. 142; State v. Bryant, 55 Mo. 79; State v. Mathews, 20 Mo. 57; Scott v. State, 10 Tex. App. 113; 7 Tex. App. 464, 305. The judgment should be reversed for the improper remarks of the prosecuting attorney. State v. Mahly, 68 Mo. 314; State v. Cooper, 71 Mo. 443; State v. Kring, 64 Mo. 595; State v. Lee, 66 Mo. 167.

D. H. McIntyre, Attorney General, for the State.

The indictment is sufficient. The objection to the averments as to the location of the wound, is not well taken. State v. Edmundson, 64 Mo. 398; R. S., § 1821. The testimony of the witness Lance that defendant struck at him was admissible, because part of the res gestae. State v. Testerman, 68 Mo. 415; McKee v. People, 36 N. Y. 113. It was not error to refuse to allow the witness Gillies to state whether defendant was drunk or sober at the time of the difficulty. State v. Edwards, 71 Mo. 312; State v. Hundley, 46 Mo. 416; State v. Dearing, 65 Mo. 530. The evidence that deceased, while standing by the mill-hopper, after the first assault and before the fatal encounter, “looked scared and as if he wanted to get away,” was proper. Wharton Crim. Ev., (8 Ed.) § 751. If it was error for the court to refuse to allow defendant to read the affidavit for continuance until the last, it was an immaterial error. He had the benefit of it in evidence, except as to the witness Edwards, who was in court and could have been sworn. The bare inspection of the record is sufficient to show that an instruction for manslaughter should not have been given. If the evidence for the prosecution is to be believed, defendant provoked the difficulty and took advantage of it to slay his victim, and was guilty of murder. If defendant's testimony is true, he acted solely in self-defense, and was guilty of no crime. The court instructed the jury fully and favorably to defendant upon the law of murder and self-defense. Defendant does not complain of the instructions given. The court properly instructed the jury that drunkenness was no excuse for the act, as has been attempted to be shown under the second head, and it was not improper for counsel to argue that phase of the case to the jury. It was true, as shown by the evidence, that defendant attempted to escape after the killing, and while the court gave no instruction upon the law as to presumptions arising from flight, or attempted flight, it was not error for the prosecuting counsel to tell the jury that it was an inference of guilt. It is true that such is the law, and it has not come to pass that the truth may be assigned as error. State v. Emery, 76 Mo. 348. If counsel misstated the evidence, as contended by defendant, the jury would have set the matter right, and it cannot be assigned as error.

NORTON, J.

The defendant was indicted for murder in the first degree at the September term, 1880, of the Stoddard county circuit court, and being put upon his trial at the September term, 1881, of said court was convicted of murder in the second degree, and brings the case before us on writ of error. The points made by counsel will be considered in the order made.

It is insisted that the indictment is insufficient in not locating the wound with certainty and because of repugnancy and inconsistency. Omitting the formal parts of the indictment it charges that: “Defendant him, the said Charles Flint, feloniously, wilfully, deliberately, premeditatedly and of his malice aforethought, did strike, stab and thrust in and upon the right side of him, the said Charles Flint, and also in and upon the back near the left shoulder of the body, giving to the said Charles Flint then and there, with the knife aforesaid, in and upon the right side, and also upon the back near the left shoulder of the body of him, the said Charles Flint, one mortal wound of the length of two inches, of the breadth of half an inch and of the depth of three inches,” etc. The objection is not well taken, for under the ruling of this court in the case of State v. Edmundson, 64 Mo. 398, where the case of the State v. Jones, 20 Mo. 61, relied upon by defendant's counsel to sustain his objection, was considered, it was held that the case of the State v. Dias, 7 Blackf. 20 upon the authority of which the point in the case of the State v. Jones, supra, was decided had, in effect, been overruled in 10 Ind. 309, 359; 14 Ind. 441 and 22 Ind. 1.

It appears that one Lance, who saw the encounter between defendant and deceased, was introduced as a witness and stated among other things, that defendant call deceased a G--d liar, that deceased replied you are another, that they struck at each other and defendant fell, and on getting up drew a bottle of whisky and tried to strike witness who was trying to keep him quiet. Defendant objected to so much of said evidence as related to his attempt to strike witness, which was overruled. This objection was properly overruled, as it was part of the res gestae, and tended to show the animus of defendant. State v. Testerman, 68 Mo. 415.

It appears from the record that, after the first assault, deceased and defendant became separated, and deceased walked twenty or thirty feet away, and one of the witnesses was allowed to state, over defendant's objection, that deceased, while standing at the mill hopper and before the fatal encounter, ““looked scared,” “looked as if he wanted to get away.” Under the authority of Wharton Cr. Ev., section 751, where it is said evidence that defendant was confused, embarrassed, or under the influence of terror is receivable, the trial court did not err in its ruling.

It is, also, objected that the court erred in refusing to allow a witness to state whether defendant was drunk or sober. Inasmuch as drunkenness neither extenuates nor excuses crime, the ruling of the court was proper. State v. Hundley, 46 Mo. 416; State v. Dearing, 65 Mo. 530; State v. Edwards, 71 Mo. 312.

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