State v. Sharp

• Decision Date: 07 March 1911
• Citation: 233 Mo. 269,135 S.W. 488
• Parties: STATE v. SHARP.
• Court: Missouri Supreme Court

135 S.W. 488

233 Mo. 269

STATE v. SHARP.

Supreme Court of Missouri, Division No. 2.

March 7, 1911.

1. CRIMINAL LAW (§ 145)—CHANGE OF VENUE—DEFECTS—APPLICATION—WAIVER.

The state, by treating an application for a change of venue on the ground of prejudice as sufficient to raise the issue of fact, and introducing evidence thereon, waived the defect that the application failed to allege, as required by Rev. St. § 5183, that the facts on which the application was based first came to the knowledge of accused since the last preceding continuance of the case.

2. CRIMINAL LAW (§ 1150) — APPEAL — DISCRETION OF TRIAL COURT — RULING ON CHANGE OF VENUE.

The granting of a change of venue in a criminal case rests largely in the discretion of the trial court, and where it heard the evidence on the issue and denied the change, the ruling will not be disturbed, in the absence of an abuse of discretion.

3. CRIMINAL LAW (§ 628) — EVIDENCE — ADMISSIBILITY.

The court may permit witnesses for the state to testify, though their names were not indorsed on the information, where their names were not known to the prosecuting attorney when the information was filed.

4. WITNESSES (§ 277) — EXAMINATION OF ACCUSED — CROSS-EXAMINATION.

Under Rev. St. 1909, § 5242, providing that accused, testifying in his own behalf, shall be liable to cross-examination as to any matter referred to in his examination in chief, accused, testifying in his own behalf, may not be cross-examined as to matters not referred to in his examination in chief.

5. CRIMINAL LAW (§ 1048)—APPEAL—EXCEPTIONS—MANNER OF TAKING.

An exception must be saved at the time of the ruling complained of in order to be available on appeal.

6. WITNESSES (§ 277)—EXAMINATION—CROSS-EXAMINATION.

Where accused on his direct examination testified that he, as leader of a religious following, told his followers to come on, that they would hold a meeting, the state on cross-examination was properly permitted to cross-examine him as to other statements made by him to his followers at the time.

7. CRIMINAL LAW (§ 730) — CONDUCT OF COUNSEL—ACTION OF COURT.

Where it was clear that a subject was not referred to by accused in his examination in chief, the court should not permit the prosecuting attorney to continue a cross-examination on such subject, and it is not sufficient for the court to merely admonish the prosecuting attorney of accused's rights at the beginning of the cross-examination.

8. CRIMINAL LAW (§ 1137)—EVIDENCE—ADMISSIBILITY—WAIVER.

Accused, who waived any objection to the introduction in evidence of a written statement made by him after his arrest, wherein he gave a short review of his career for a few years preceding the offense, could not on appeal complain of the admission of the statement.

9. HOMICIDE (§ 160) — EVIDENCE — ADMISSIBILITY.

The state in a murder case may prove the purchase and possession of firearms and weapons by accused, to show preparation for the commission of the crime.

10. HOMICIDE (§ 158)—EVIDENCE—ADMISSIBILITY.

The state, on a trial for murder of a police officer, may prove threats by accused against the police as a class.

11. HOMICIDE (§ 340) — INSTRUCTIONS — ERRORS—RIGHT TO COMPLAIN.

One convicted of murder in the second degree may not complain of errors in instructions on murder in the first degree.

12. HOMICIDE (§ 340)—EVIDENCE—INSTRUCTIONS.

Where the uncontradicted evidence showed an intentional killing of decedent, accused was not prejudiced by an instruction on manslaughter in the fourth degree which failed to require a finding that the shooting was intentional.

13. HOMICIDE (§ 340)—INSTRUCTIONS—PREJUDICIAL ERROR.

The error, if any, in an instruction authorizing a conviction of a lower grade of homicide than murder if the killing was done in the heat of passion, arising from the failure to define the term "heat of passion," is favorable to accused because freeing him from the burden of showing that the passion was caused by lawful provocation, and was the moving cause of the killing.

14. HOMICIDE (§ 45) — MURDER — PROVOCATION.

The provocation to reduce a killing from murder to manslaughter must consist of personal violence, and mere words of reproach, or indecent, provoking actions or gestures, are insufficient.

15. HOMICIDE (§ 17)—MURDER IN THE FIRST DEGREE.

One who kills another, after having voluntarily sought or invited the difficulty with decedent with the felonious purpose of killing him or of doing him some great bodily harm, is guilty of murder in the first degree, no matter who fired the first shot.

16. HOMICIDE (§ 340)—EVIDENCE—INSTRUCTIONS.

Where the evidence showed that accused, after assaulting an officer, immediately went in front of the police station, armed with a deadly weapon, and on trouble quickly ensuing, shot a policeman, it is obvious that if accused provoked the difficulty at all, it was with felonious purpose, so that an instruction that if accused provoked the difficulty without any felonious purpose, and decedent and others acting with him attacked accused and compelled him to take the life of decedent, then accused was guilty only of manslaughter in the fourth degree, etc., was too favorable to accused.

17. CRIMINAL LAW (§ 773)—INSTRUCTIONS—INSANITY.

An instruction which submits the issue of insanity in accordance with the decisions of the Supreme Court is free from error, though it is not entirely clear because of the inherent difficulty of presenting the subject in all its bearings under the evidence.

18. CRIMINAL LAW (§ 829)—TRIAL—INSTRUCTIONS — REFUSAL TO GIVE INSTRUCTIONS COVERED BY THE CHARGE GIVEN.

It is not error to refuse a correct instruction covered by an instruction given.

19. CRIMINAL LAW (§ 1166½)—REMARKS OF TRIAL JUDGE—EFFECT.

Though remarks of the trial court in the presence of the jury, whereby it complimented the prosecuting attorney and criticised the attorney for accused, should not have been made, they were not ground for reversal.

20. HOMICIDE (§ 254) — EVIDENCE — SUFFICIENCY.

Evidence held to support a conviction of murder in the second degree, if accused was sane.

21. HOMICIDE (§ 237)—INSANITY—EVIDENCE —SUFFICIENCY.

Evidence held to justify a finding that accused was sane, justifying his conviction of murder in the second degree.

22. CRIMINAL LAW (§§ 747, 1159)—EVIDENCE —QUESTION FOR JURY.

The jury determines the facts when there is a conflict in the testimony, and, where there is substantial evidence to warrant the verdict, the Supreme Court will not disturb it.

Appeal from Criminal Court, Jackson County; Ralph S. Latshaw, Judge.

James Sharp was convicted of murder in the second degree, and he appeals. Affirmed.

A. E. Martin, for appellant. Elliott W. Major, Atty. Gen., and Chas. G. Revelle, Asst. Atty. Gen., for the State.

KENNISH, P. J.

At the January term, 1909, of the criminal court of Jackson county, the prosecuting attorney filed an information charging the appellant, James Sharp, and his wife, Melissa Sharp, with the crime of murder in the first degree, for the shooting and killing of Michael P. Mullane, with a pistol, on the 8th day of December, 1908. Upon the application of the defendants a severance was granted, and the defendant James Sharp was put upon his trial, was convicted of murder in the second degree, and his punishment assessed at a term of 25 years in the penitentiary. He appealed to this court.

The evidence for the state tended to prove the following facts : At the date of the homicide the defendant was the leader of a religious band of eight persons, consisting of the defendant and his wife, a widower named Pratt and his four children, three girls and one boy, ranging from 3 to 16 years of age, and a young man named Enghnell, about 20 years of age. The record does not disclose the religious belief of the defendant and these people, except that he preached repentance and proclaimed himself to be God, Adam, the Lord of the Vineyard, Elijah, and the Fifth Angel. About six or seven years before the homicide, while farming in Oklahoma, he claimed to have had a revelation in which he was commanded to preach the gospel. Having that end in view, he sold his farm, and with his wife, and at times a few other followers, traveled over several states and into Canada, preaching and taking up collections from his hearers. While in Oklahoma City and again in Canada he had trouble with the police officers, and in the latter place he and his followers offered armed resistance to the officers of the Canadian government. A few days before the homicide the defendant and his band reached Kansas City in a boat, having come down the Missouri river by that means from the far north, stopping and preaching at cities and towns in the course of their journey. They lived in their boat, and when they arrived at Kansas City anchored it at the bank of the river at the foot of Main street. They then began preaching and holding song services in the streets of the city.

All of the band except the young man, Enghnell, and one of the Pratt children left their house boat on the afternoon of the 8th of December, 1908, and went up into the city to hold services. It does not appear that up to this time the police officers of Kansas City had in any manner interfered with the exercises of these people, yet when they left the boat and went to the city to hold religious services on this day they were all armed with concealed firearms, and the defendant, in addition, was armed with a long-bladed knife. There was a room near the city hall and police station called the Workingmen's Mission, and in this place the defendant was allowed to preach. About 3 or 4 o'clock on the said afternoon the defendant's wife and the children were holding services on the street a little more than a block south of the Mission, during which time the defendant and Pratt were preaching in the mission room to 10 or 15 men. At the close of the services on the street a collection was taken up ;...