State v. Rider
| Decision Date | 04 June 1888 |
| Citation | 8 S.W. 723,95 Mo. 474 |
| Parties | The State v. Rider, Appellant |
| Court | Missouri Supreme Court |
Appeal from Saline Criminal Court. -- Hon. John E. Ryland, Judge.
Affirmed.
Boyd & Sebree and Davis & Wingfield for appellant.
(1) The court should have instructed on a lower grade of homicide than murder in the first degree. State v. Robinson, 73 Mo. 306; State v. Edwards, 70 Mo. 480; State v. Curtis, 70 Mo. 594; State v. Anderson, 86 Mo. 309. If the defendant had passion or excitement of the mind, which was not provoked by what the law accepts as adequate cause so as to rebut the imputation of malice, an intentional killing under the influence of such a passion or excitement, was murder in the second degree. State v Curtis, 70 Mo. 594; State v. Ellis, 74 Mo. 207. (2) The court erred in giving the second instruction for the state. (3) The third instruction for the state is wrong, for it plainly assumes the guilt of the defendant and requires him to produce evidence to justify, excuse, or palliate the offence of murder. That the court may have properly defined self-defence does not cure the error. The fact that defendant was the only witness to the killing did not warrant the court in assuming that his evidence was untrue and that there was no evidence to support defendant's theory of the case. State v. Palmer, 88 Mo. 568; People v Williams, 17 P. 211; State v. Tate, 12 Mo.App 327; State v. Banks, 73 Mo. 592; State v. Anderson, 86 Mo. 309; State v. Wheeler, 79 Mo. 366; State v. McNally, 87 Mo. 644-658. (4) The third instruction was erroneous also in this, that it was calculated to mislead the jury as to the purposes for which threats were admitted in evidence, and in effect leads the jury to believe that the evidence of threats can only be considered when they are satisfied from the other evidence in the case that an actual assault or actual demonstration of violence was made by deceased; when, in fact, the evidence of threats was admissible for the purpose only of showing the probabilities as to who made the assault. State v. Elkins, 63 Mo. 159; State v. Alexander, 66 Mo. 148; State v. Sims, 68 Mo. 305, 309, and cas. cit.; State v. Rider, 90 Mo. 54; State v. Anderson, 86 Mo. 309. (5) The court committed error in refusing to give the second instruction asked by the defendant. This was the only instruction asked which clearly and fully set out the rights of the defendant under the evidence, and defined his theory of the case. It is the law of the case and should have been given. State v. Anderson, 86 Mo. 309. (6) The court erred in permitting Milton Campbell to testify that, "on the evening before the killing defendant caught up with him on the public road and asked him if he had a pistol and that he told defendant he had not, but defendant told him he had and drew a gun on him and told him if he did not give it to him he would kill him -- and thus made him give up his pistol." The tendency of this evidence was to show defendant guilty of another crime than that for which he was on trial, to-wit, highway robbery, and had no relation to, and no tendency to prove the commission of the crime for which defendant was on trial, or any essential ingredient thereof. It prejudiced the minds of the jury against defendant. State v. Nugent, 71 Mo. 143; State v. Goetz, 34 Mo. 89; State v. Reid, 85 Mo. 199; State v. Wonderly, 17 Mo.App. 601; Wharton's Crim. Evid., sec. 30. (7) The court erred in refusing to permit Charles Dobyns to testify that, "about two weeks before the death of Tallent he told witness that he was in the habit of having sexual intercourse with Mart Rider's (defendant's) wife, and (pointing to an apple-tree) said he had done it to her several times under that tree." This, in connection with the threats proven, and the other evidence in the case, tended strongly to sustain defendant's statement and theory of the case that deceased assaulted him with an axe, and was stronger evidence in support of that theory than evidence of threats alone. State v. Elkins, 63 Mo. 159; State v. Alexander, 66 Mo. 148; State v. Lee, 66 Mo. 165; State v. Adams, 76 Mo. 355; State v. Grant, 79 Mo. 113; State v. Husky, 79 Mo. 509; State v. Hayden, 83 Mo. 198. (8) The court committed error in refusing to permit the defendant, while a witness on the stand, and also the witness Merrill, to testify that "within about one minute after the shot was fired the defendant told said Merrill that he -- defendant -- had shot Tallent, that he had to do it." This evidence was legal and competent in rebuttal of the theory and evidence of the state. Witness Ireland for the state had been permitted to testify to acts and conduct of defendant on the night and day after the killing tending to show a concealment of his act of killing, and for the purpose of rebutting this the evidence offered was material, legal, and proper. (9) The court erred in permitting the state to ask the question, as to defendant's reputation in the neighborhood in which he lived, for truth, veracity, morality, and chastity.
B. G. Boone, Attorney General, and A. F. Rector, Prosecuting Attorney, for the state.
(1) The court did not err in overruling the application for change of venue. The finding of the court on the question of the prejudice of the inhabitants is final unless it appears palpable injustice has been done. State v. Whitton, 68 Mo. 91; State v. Guy, 69 Mo. 431; State v. Bohannon, 76 Mo, 564; State v. Burgess, 78 Mo. 235; State v. Brounfield, 83 Mo. 449; State v. Wisdom, 81 Mo. 177; State v. Wilson, 85 Mo. 130. (2) The evidence on the part of the state, if true, proved a dastardly, deliberate murder; that on the part of the accused a clear case of self-defence. The instructions given on these two theories were correct, and the court did not err in refusing to instruct the jury in relation to murder in the second degree, or manslaughter in any degree. State v. Starr, 38 Mo. 272; State v. Kilgore, 70 Mo. 559; State v. Snell, 78 Mo. 244; State v. Jones, 79 Mo. 442; State v. Collins, 81 Mo. 658; State v. Wilson, 86 Mo. 520; State v. Wilson, 88 Mo. 13, 18, 19; State v. Blunt, 91 Mo. 503. (3) Instructions for lower grades of homicide are properly refused when the evidence shows the offence to be murder in the first degree or nothing. State v. Foster, 61 Mo. 551; State v. Green, 66 Mo. 65. (4) The court did not err in its refusal of the instructions asked by the defendant. (5) The court did not err in excluding the alleged conversation of defendant with Merrill. It did not grow out of and was not a part of the transaction, but, if made, was only a narration of a past event. State v. Swain, 68 Mo. 605; State v. Evans, 65 Mo. 578; Ladd v. Couzin, 35 Mo. 516; State v. Brown, 64 Mo. 371; State v. Walker, 78 Mo. 386; Wharton's Crim. Evid. (9 Ed.) secs. 262, 270; State v. Hicks, 92 Mo. 436; State v. Snell, 78 Mo. 243. (6) The testimony of Milton Campbell, a witness for the state, that defendant overtook him and compelled him, by pointing a loaded gun at him (C.) to give him (defendant) a revolver which Campbell was carrying, is competent to show that defendant was securing additional arms with which to enter into the difficulty; especially is this true when it is shown in connection with the fact that defendant was then going with gun in hand towards the house of deceased, which was about one-fourth of a mile away, and that this occurred about thirty minutes before the killing. Whar. Crim. Evid. (9 Ed.) secs. 31, 48, 51, 753; State v. Nugent, 71 Mo. 140; State v. Johnson, 76 Mo. 123. (7) The testimony to impeach defendant as a witness was properly admitted. State v. Palmer, 88 Mo. 571; State v. Rider, 90 Mo. 54.
On the twenty-third day of July, 1885, the defendant and one Rousey P. Tallent were living in the same neighborhood in the Miami bottom of the Missouri river in Saline county about six miles from the town of Miami. Both went to the town of Miami in the morning of that day, Tallent returning home about noon and Rider, the defendant, about four o'clock in the afternoon. During their absence, a woman who is sometimes called Mrs. Moore and sometimes Mrs. Rider, in the record, who was examined as a witness by the state without objection, but whom Rider claimed to be his wife, and with whom he had been living as such for three years previous, and by whom he had a child then about two years old, left Rider's house with her child and went to Tallent's. After Tallent ate his dinner, he rode to the river, procured a skiff, was met at the bank of the river by his wife, this woman, and another neighbor lady, and he took Mrs. Rider in the skiff across the river, leaving her on the other side. About an hour before sundown he started to re-cross the river, and returning to his home a little after dark, in a path leading to his house he was met by the defendant within a few steps of his door, by whom he was shot and killed. Rider, upon returning to his home, found his wife gone, and thereupon commenced making inquiries for her of his neighbors, satisfied himself that she had gone to Tallent's, that Tallent had gone away from home that afternoon, that she had been taken across the river, and that Tallent was the man who had taken her off.
The evidence for the state tended to prove that thereafter he armed himself with a double-barreled shotgun; afterwards procured a revolver, and about dusk proceeded towards Tallent's home for the purpose of killing him. The evidence for the defendant tended to prove that after he got the shotgun, at the house of his brother-in-law, Mr Cockrill, he went in search of his wife, going first to the home of a Mr. Merrill, who lives but a short distance from Tallent's, and Rider, in his evidence upon the stand, gives the following account of what transpired...
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