State v. Rodman

• Decision Date: 17 March 1903
• Citation: 73 S.W. 605,173 Mo. 681
• Parties: STATE v. RODMAN.
• Court: Missouri Supreme Court

73 S.W. 605

173 Mo. 681

STATE v. RODMAN.

Supreme Court of Missouri, Division No. 2.

March 17, 1903.

HOMICIDE—CHANGE OF VENUE—SUFFICIENCY OF CLERK'S CERTIFICATE—SPOLIATION OF TRANSCRIPT — PAROL EVIDENCE — FILING ORIGINAL INDICTMENT—ADMISSIBILITY OF EVIDENCE—REMARKS OF COUNSEL—MURDER IN THE SECOND DEGREE—SUFFICIENCY OF EVIDENCE.

1. Under Rev. St. 1899, § 2586, relating to change of venue, and providing that the clerk of the court shall make out a full transcript of the record "and proceedings" in the cause, the clerk's certificate on a change of venue in a prosecution for murder that "the above and foregoing is a full, true, and a complete transcript in the above-entitled cause" is sufficient.

2. An insufficient certificate to the clerk's transcript required on a change of venue in a murder prosecution will not affect the jurisdiction of the court to which the cause is transferred.

3. It is not error, as permitting proof by parol evidence of spoliation of a transcript, to permit the clerk of the court from which a murder prosecution is transferred on change of venue to testify to his official capacity, and to identify the original indictment, containing words whch have been erased in the transcript.

4. On a change of venue in a murder prosecution, where the state claims an erasure from the transcript of words contained in the original indictment, it is proper to permit the original indictment to be introduced in evidence, instead of a copy thereof.

5. On a change of venue in a murder prosecution, where the state has proved an erasure from the transcript of words contained in the original indictment, the filing of the original indictment and proceeding, with the trial thereon, while perhaps irregular, is not prejudicial error.

6. In a prosecution for murder, where it appears that, about a year before the homicide, deceased had assaulted and wounded defendant, and that between that occurrence and the killing a committee of neighbors had called on deceased in regard to the difficulty between him and accused, evidence of the personnel of the committee is properly excluded.

7. Where a witness in a murder prosecution has already testified that, immediately after deceased made threats against accused, he communicated them to the latter, it is not error to exclude a repetition of the testimony.

8. Where, in a criminal trial, defendant's counsel, after an objection to a question had been sustained, framed the question so as to include time and place, whereupon another objection is overruled, and counsel then excuses the witness from answering, there is no error as against accused.

9. In a prosecution for murder, growing out of a difficulty occasioned by accused's attentions to the daughter of deceased, it is not error to exclude the daughter's testimony in regard to her engagement to accused, or how she deported herself in his presence.

10. On the trial of a murder case the state's counsel said to the jury that, when the commission of a crime was charged, an accused had the right to a preliminary examination before a justice, and if the justice made a mistake it could be corrected by the grand jury, and if the grand jury made a mistake it might be corrected on trial in the circuit court, and if the circuit court made a mistake it might be corrected by the Supreme Court, and if that court made a mistake the Governor might pardon. At this point defendant's counsel interposed an objection, which was sustained. Held, that the remarks were not ground for reversal.

11. The fact that decedent had previously assaulted and wounded his murderer, and that bitter feeling existed between them, would not justify the latter in lying in wait and killing decedent.

12. Evidence in a prosecution for murder considered, and held to sustain a conviction of murder in the second degree, as against the defense of self-defense and circumstances relied on to reduce the crime to manslaughter.

Appeal from Circuit Court, Randolph County; John A. Hockaday, Judge.

Mayo Rodman was convicted of murder in the second degree, and appeals. Affirmed.

The defendant, Mayo Rodman, was indicted at the December term, 1900, of the circuit court of Callaway county for murder in the first degree, of Charles Davis, in Callaway county, on the 25th day of October, 1900. He was duly arraigned and pleaded "Not guilty" in the Callaway court. Afterward, in February, 1901, he made application in vacation to Judge Hockaday, the judge of that circuit court, for a change of venue from said county on account of the prejudice of the inhabitants of Callaway county against him, and this application was sustained, and the change awarded to Randolph county, in the same circuit; and the clerk was directed to transmit a complete transcript of the record to the clerk of the Randolph circuit court, which was done, and the transcript was filed in the latter court February 11, 1901. The cause was continued at the March term of the Randolph court, and was tried at the September term, 1901, and resulted in a verdict of guilty of murder in the second degree, and his punishment assessed at 25 years in the penitentiary. After motions for new trial and in arrest were filed and overruled, the defendant was sentenced in that court.

The homicide out of which this prosecution grew occurred on the 25th of October, 1900. The defendant, Rodman, and Charles Davis, the deceased, resided on adjoining farms in Callaway county, near the town of Auxvasse. The defendant lived with his widowed mother and sister, and was a bachelor. He was a farmer, and some 10 years before had been a school-teacher. Davis, the deceased, was a married man. His family consisted of his wife and five children, among whom was a daughter, Minnie Davis, a girl about 17 years of age at the time of the homicide. The defendant became enamored of this young lady, and began to pay her marked attention. He was finally ordered by deceased to cease his attention to the girl, as it was distasteful to her parents; but he continued to meet her on the road to school, and wherever he could when she was away from her home, until it finally culminated in a difficulty in 1899, about a year before this homicide, in which deceased shot and wounded defendant. The matter was taken before the grand jury, and deceased was discharged. From that time on a very bitter feeling existed between the deceased and defendant. Threats were indulged in by both sides. Some weeks before the killing of deceased, defendant procured a new Smith & Wesson revolver, and said on different occasions that, if deceased ever assaulted him or crossed his path, he intended to kill him. On the afternoon of October 25, 1900, deceased was engaged on his farm, working at his corn pens, stretching wire around them; and his son, Nelson Davis. 17 years old, was plowing in the field adjoining the pens, about a quarter of a mile distant. The deceased had one mule, that he was using to pull the wire up to the pens. The son could see his father at work. About sundown the boy quit plowing a little before his father did. He saw his father stop work and start home, and the boy also started to the barn with his team. When within 15 or 20 feet of a gate through which he had to go to reach the stables, his son heard a shot fired. He looked toward his father, and saw him jump or slide off of his mule, and the mule ran away. He testified that the first shot did not strike his father, but immediately a second shot was fired, which caused his father to drop on his face. Four shots were fired in rapid succession. He saw Rodman, the defendant, standing behind the partition hedge fence, firing at his father. When the first shot was fired, he heard defendant say, "Now, by G—d! your time has come." He was then about 100 yards from his father, and ran to him. The deceased fell about 27 steps from the hedge fence. Defendant was about 40 yards distant from deceased when he shot him. The hedge at the point from which defendant shot was thick and well calculated to conceal him from deceased. As defendant shot the last shot, he called to the son, Nelson, and said, "I dare you to come up here." When the first shot was fired, Mrs. Davis heard it, and ran out and ran to her husband. According to the state's evidence, the deceased had his back to defendant when the latter shot him. On the part of defendant, he testified that deceased was approaching him with an uplifted ax in his hand, and his other hand at his pistol pocket, and cursing, abusing, and threatening him, and, remembering the former difficulty between them, he shot him in self-defense. On the part of the state, William Black testified he was at the home of Rodman the next morning after the shooting, and defendant was in charge of the sheriff, who permitted the defendant to go to the barn. Black walked with him, and said to him: "Mayo, how did it happen? Where did it occur?" Defendant answered: "East of the dead tree. I was there, and Davis was there, on his side of the fence, and he came running along there with his ax drawn, and I pulled my pistol and shot three times in succession." "He said Davis aimed to turn, and he shot three times. He said the second shot did it." Other witnesses stepped off the ground, and testified it was 27 steps from where deceased fell to the point behind the hedge from which defendant shot. There was also evidence tending to show that deceased was on his mule when defendant first shot at him, as the ball struck the gable of a chicken house, and ranged upwards into the shingles; the house being in a direct line from the point at which defendant shot, and where deceased fell. Mrs. Davis, the wife of deceased, testified that when she reached her husband he was dead, and she straightened out his limbs and put a shawl over him. In turning him, she found he was lying on an ax, and she pulled it out and threw it aside. The testimony further showed he had sent to the house for the ax, to use it in his work...