State v. Sanders

• Decision Date: 31 October 1882
• Citation: 76 Mo. 35
• Parties: THE STATE v. SANDERS, Appellant.
• Court: Missouri Supreme Court

76 Mo. 35

THE STATE

v.SANDERS, Appellant.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Mississippi Circuit Court.--HON. J. D. FOSTER, Judge.

AFFIRMED.

I. C. O'Bryan and R. B. Smith for appellant.

D. H. McIntyre, Attorney General, and J. J. Russell, Prosecuting Attorney for Mississippi county, for the State.

NORTON, J.

The defendant was indicted in the circuit court of Mississippi county, at its February term, 1882, for murder in the first degree, for killing one Moses Wing, on the 19th day of November, 1881. He was put upon his trial at the same term the indictment was found, and convicted of murder in the first degree. From this judgment of conviction the defendant has appealed to this court, and through his counsel has assigned various grounds of error, the first of which is the action of the court in overruling a demurrer to the indictment.

1. MURDER: pleading.

The court was asked to sustain the demurrer on the ground that the indictment was vague, uncertain and indefinite, in that it did not specify the particular part of the body on which the mortal wound was inflicted, nor describe the wound. Under the ruling of this court in the case of the State v. Edmundson, 64 Mo. 398, the objection to the indictment was not well taken, and the demurrer to it was properly overruled.

2. _____: evidence.

During the progress of the trial the physician who made the post mortem examination, was allowed to testify as to four wounds found on the body of deceased, one of which he said was mortal. Defendant objected to this evidence because the indictment alleged but one mortal wound. This objection was properly overruled. Beal v. People, 42 N. Y. 270; Hamby v. State, 36 Tex. 523; Sanchey v. People, 4 Parker C. R. 535. In the case last cited it was held that when the indictment alleged that deceased was killed by “one mortal wound,” and the evidence showed that two were given, the variance was immaterial, and we have held in the case of State v. Blan, 69 Mo. 317, that the admission of immaterial testimony which in no way prejudices the accused is no ground for a new trial.

3. _____: _____.

It is also objected that the court erred in allowing a witness, who caught defendant by the collar and pulled him off of deceased at the request of deceased, to state that defendant struck at him with a knife which he had in his hand. It appears from the evidence of this witness that when he pulled defendant away from deceased, deceased walked a few steps and fell to the ground, and witness said to defendant, “Look, Alf, you have killed that man;” whereupon defendant said, “Turn me loose,” which the witness refused to do, and thereupon defendant struck at witness with the knife. We think the evidence was clearly admissible. The act of defendant was cotemporaneous with the killing, and was evidently committed in an effort to get away or escape. 1 Greenleaf Ev., § 108.

It is also objected that the court erred in giving in structions on behalf of the State. The court gave seven instructions, and six of them, with the exception of the definition of premeditation, were literal copies of instructions which received the sanction and approval of this court in the case of the State v. Talbott, 73 Mo. 347; and premeditation was defined as it was in the case of the State v. Kilgore, 70 Mo. 546, which was also sanctioned by this court.

4. CRIMINAL LAW: defendant as a witness.

The seventh instruction told the jury that defendant was a competent witness in his own behalf, but the fact that he was the defendant on trial might be taken into...