State v. Richardson

• Decision Date: 06 March 1906
• Citation: 92 S.W. 649,194 Mo. 326
• Parties: STATE v. RICHARDSON.
• Court: Missouri Supreme Court

92 S.W. 649

194 Mo. 326

STATE v. RICHARDSON.

Supreme Court of Missouri, Division No. 2.

March 6, 1906.

1. CRIMINAL LAW — APPEAL—CONTINUANCE—DISCRETION.

Granting or denying an application for continuance is a matter resting largely in the discretion of the trial court, and it is only where it is manifest that such discretion has been abused that the Supreme Court will interfere with the action of the trial court.

2. SAME—CONTINUANCE—DILIGENCE.

It was proper to refuse a continuance on the ground of absence of witnesses, where the subpœna was not issued for the witnesses until two days before the day set for trial, and one of the intervening days was Sunday.

3. SAME—APPLICATION—REQUISITES.

An application for continuance on the ground of the absence of witnesses must state that the facts expected to be proved by such absent witnesses are true.

4. SAME—APPEAL—MOTION FOR NEW TRIAL—NECESSITY.

The denial of a motion to quash the panel of jurors will not be reviewed on appeal, where such ground of complaint was not called to the attention of the trial court in the motion for a new trial.

5. SAME—CHANGE OF VENUE—AFFIDAVITS.

Under Rev. St. 1899, § 2576, requiring that the petition of the applicant for change of venue shall be supported by the affidavit of the petitioner and the affidavit of at least two credible disinterested citizens of the county, the failure to furnish the affidavits of the disinterested citizens was fatal to the application.

6. SAME—NEW TRIAL—MISCONDUCT OF JURORS.

There was no error in overruling a motion for a new trial on the ground of misconduct of a juror in receiving two letters during the trial, where such alleged misconduct was simply called to the attention of the trial court in the motion for new trial, and such motion was neither accompanied by the affidavit of defendant nor of his attorney, and it nowhere appeared at what time the alleged misconduct came to the knowledge of defendant or his counsel.

7. SAME—EVIDENCE—SILENT ADMISSIONS.

Statements made by one of joint defendants in the presence of the other, while they were both in jail, were not admissible on the ground of a silent admission, where the witness who detailed the conversation stated that defendant on hearing the statements said that the same were not right and he wanted to state it himself, whereupon the officer in charge refused to permit him to do so.

8. WITNESSES — STATEMENTS OF DEFENDANT'S WIFE.

Where the wife is incompetent to testify against her husband, the testimony of the third person as to her declarations in the presence of her husband is not admissible against him.

9. CRIMINAL LAW—DECLARATIONS OF CODEFENDANTS.

Where a husband and wife were jointly indicted, statements made by the wife, not in the presence of her husband, were inadmissible as against him.

10. SAME—INSTRUCTIONS—PROVINCE OF JURY.

Where the testimony of a witness for the state as to declarations made in the presence of defendant showed that defendant said, in the presence of the witness who testified, that the statement was not right, and that he wanted to correct it, but was refused permission by the officer in charge, it was error for the court in instructing the jury to leave it to them to determine whether defendant assented or not.

11. HOMICIDE — CHARACTER OF ACCUSED — EVIDENCE.

In a prosecution for murder, it is error to permit the state to show that defendant has the reputation of being quarrelsome, and has shot at other persons, until defendant has first attempted to show his good reputation for peace and quiet.

12. SAME — APPEAL — OBJECTIONS IN LOWER COURT—EVIDENCE.

In a prosecution for murder, the admission of incompetent testimony showing that defendant had shot at other persons affords no ground of reversal, where no objection was made to it in the lower court.

13. WITNESSES—CREDIBILITY—GENERAL REPUTATION.

The general reputation of defendant, in a criminal prosecution, who testifies as a witness, as being quarrelsome and violent, is not admissible for the purpose of affecting his credibility.

14. HOMICIDE — INSTRUCTIONS — GRADE OF CRIME.

In a prosecution for murder, whatever grades of the crime defendant's testimony may tend to prove should be covered by appropriate instructions, although his evidence may not be true.

Appeal from Circuit Court, Cape Girardeau County; Henry C. Riley. Judge.

James Richardson was convicted of murder in the first degree, and appeals. Reversed.

This cause is here upon appeal by the defendant from a judgment of the circuit court of Cape Girardeau county, Mo., convicting him of murder of the first degree. The indictment upon which defendant was tried was returned by the grand jury on January 2, 1905, charging James Richardson and Phoebe Richardson, his wife, with murder in the first degree. Omitting formal parts, the offense was thus charged: "The grand jurors of the state of Missouri, duly impaneled, sworn, and charged to inquire within and for the county of Cape Girardeau, state aforesaid, on their oaths present and charge that James Richardson at the said county and state, on or about the 22d day of August, A. D. 1904, in and upon one Wm. Bleckwendt, then and there being willfully, feloniously, on purpose, deliberately, premeditatedly, and of his malice aforethought, did make an assault, and with a dangerous and deadly weapon, to wit, a shotgun, then and there charged and loaded with gunpowder and lead shot, which he, the said James Richardson, in his hands then and there, had and held, then and there willfully, deliberately, on purpose, premeditatedly, and of his malice aforethought, feloniously, did discharge, and shoot off at, to, and against the body of him, the said Wm. Bleckwendt, and with the shotgun aforesaid, and the leaden shot aforesaid, then and there feloniously, and on purpose, and of his malice aforethought, willfully, deliberately, and premeditatedly, did shoot, strike, penetrate, and wound him, the said Wm. Bleckwendt, in and upon the back and body of him, the said Wm. Bleckwendt, giving him, the said William Bleckwendt, then and there with the dangerous and deadly weapon, the shotgun aforesaid, and the gunpowder and the leaden balls aforesaid, so as aforesaid shot out of the shotgun aforesaid, by the force of the gunpowder aforesaid, in and upon the back and body of him, the said William Bleckwendt, divers wounds and one mortal wound of the breadth of one quarter of an inch, and the depth of three inches, of which said mortal wound, the said William Bleckwendt then and there did die. And the grand jurors aforesaid, upon their oath aforesaid, do further find, present, and charge that Phoebe Richardson, before the said felony and murder was committed in the manner and form aforesaid, and by the means aforesaid, at the time and place aforesaid, and also at the time, did then and there willfully, deliberately, premeditatedly, and of her malice aforethought, feloniously, incite, move, procure, and aid with said shotgun and with a deadly weapon, to wit, a large club, and counsel, hire, and command him, the said James Richardson, to do and commit the said murder aforesaid, in the manner and form aforesaid, and by the means aforesaid at the time and place aforesaid, to do and commit, and so the grand jurors, aforesaid, upon their oaths aforesaid, do say that James Richardson and Phoebe Richardson, him, the said William Bleckwendt, at the time and place aforesaid, in the manner and by the means aforesaid, feloniously, on purpose, willfully, deliberately, premeditatedly, and of their malice aforethought, did kill and murder, contrary to law and against the peace and dignity of the state."

At the May term, 1905, of the circuit court of said county the defendant, James Richard son, and his wife, Phoebe Richardson, were jointly tried for the commission of the offense charged in the indictment. Defendant's wife, Phoebe Richardson, was acquitted, and he was convicted. Upon the trial of this cause the evidence introduced by the state tended to prove: That the defendants, James Richardson and Phoebe Richardson, were husband and wife, and lived in a house about 150 yards from the place of the fatal difficulty. That Seehausen, Mortensen, May, and Meyestedt visited the home of Mary Le Grand on August 21, 1904, and took some beer with them. This home was a houseboat, situated on a slough of Sloan's creek in a meadow in Dannybrook, a suburb of the city of Cape Girardeau, and was about 100 yards from the public road. It was practically admitted that Mary Le Grand was a woman of bad repute; she having been married, but living apart from her husband, and that she kept a bawdy house, and that deceased was a frequent visitor at the house. After remaining at this shanty boat for some time, variously estimated at from half an hour to two hours, the deceased came, and the other men left; three of them going in the direction of a spring wagon. After reaching this wagon, the three drove to a gate, which opened into a public road, a gravel road. This was about midnight. This road ran north and south, and separated the land of defendant from that owned by Mrs. Sullivan; defendant's being on the west and Mrs. Sullivan's on the east of said road. This houseboat was situated on the bank of the creek on Mrs. Sullivan's land. The deceased and the Le Grand woman walked along with the men in the wagon for the purpose of opening and shutting the gate. As the three men drove off in the spring wagon, they met a man and woman on the road, coming from the direction of the defendant's house, and going towards this gate. It was a bright moonlight night, and all the witnesses seem to have had no trouble in recognizing persons, even at some distance. After driving up the road a little way, these three men heard the report of a gun, and one of them returned and found deceased suffering from the effects of a number of wounds in the back. The only eyewitnesses to the shooting were the Le Grand woman and...