State v. Sharp

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

135 S.W. 488

233 Mo. 269

THE STATE v. JAMES SHARP, Appellant

Supreme Court of Missouri, Second Division

March 7, 1911

Appeal from Jackson Criminal Court. -- Hon. Ralph S. Latshaw, Judge.

Affirmed.

A. E Martin for appellant.

(1) The evidence on the part of the State, as well as that introduced by the appellant, so abundantly establishes the fact that appellant could not have a fair and impartial trial in Jackson county, that it amounted to gross abuse of judicial discretion to deny the application for a change of venue. (2) The court should not have permitted the witnesses not indorsed on the information to testify for the State, for the reason the evidence showed that the prosecuting attorney knew of these witnesses when he filed the information. State v. Roy, 83 Mo. 268; State v. Steifel, 106 Mo 133; State v. Stowe, 137 Mo. 525; State v Nettles, 153 Mo. 268; State v. Barrington, 198 Mo. 81; State v. Meyers, 198 Mo. 249; State v. Griffin, 87 Mo. 608. (3) The court erred in permitting the prosecuting attorney to question defendant about matters not gone into in examination in chief, and things not asked about nor testified to in examination in chief, that were damaging to defendant. State v. Minor, 193 Mo. 197; State v. Bell, 212 Mo. 129; State v. Barrington, 198 Mo. 81; State v. Hathborne, 166 Mo. 229; State v. Graves, 95 Mo. 510; State v. Trott, 36 Mo.App. 29. (4) The court erred in admitting on behalf of the State the written statement of defendant about matters not connected with the charge of murder for which defendant was on trial and not throwing any light thereon and containing damaging statements tending to prejudice the jury against defendant in reference to guns, rifles, being in jail, and having trouble with officers in different places in the United States and in Canada. And said statement was not proper rebuttal evidence. Where life is at stake the court should take great care to keep out illegal testimony. State v. Minor, 193 Mo. 597. (5) The court erred in giving instruction 2 on the part of the State, on murder in the first degree, for the reason that there was no evidence upon which to base such instruction. State v. Gordon, 191 Mo. 130; State v. Garrison, 147 Mo. 39; State v. Elsey, 201 Mo. 572; State v. Walker, 196 Mo. 87. (6) The court erred in giving instruction 4, for the reason that there was no evidence upon which to base such instruction. State v. Gordon, 191 Mo. 130; State v. Garrison, 147 Mo. 39; State v. Elsey, 201 Mo. 572; State v. Walker, 196 Mo. 87. (7) The court erred in giving instruction 6, on behalf of the State, defining manslaughter in the fourth degree, in this, that said instruction authorized the jury to find the defendant guilty of manslaughter in the fourth degree, regardless of whether he intentionally shot Mullane, and in using the term "in a heat of passion" and not under such circumstances as to justify the defendant on the ground of self-defense, as defined in instruction 14, and failed to define the term "in a heat of passion," as well as referring to another instruction, supposed to define the law of self-defense, but which improperly defined the same. It is reversible error to use the term "in a heat of passion" in an instruction for manslaughter, and fail to define the same. State v. Skaggs, 159 Mo. 581; State v. Strong, 153 Mo. 555; State v. Gordon, 191 Mo. 130; State v. Reed, 154 Mo. 129; State v. Andrews, 76 Mo. 101; State v. Elsey, 201 Mo. 572. (8) The court erred in giving instruction 10 for the State, attempting to define murder in the second degree and manslaughter in the fourth degree, in this, that it told the jury that if the defendant began or provoked the difficulty in which Mullane lost his life, without any felonious purpose, and that Mullane compelled the defendant, in order to save his own life, to kill Mullane, the defendant would still be guilty of manslaughter in the fourth degree, regardless of whether or not said provocation was brought about by words, or in any other manner, and failed to define the term "provoking a difficulty," nor did the instruction state that it was intentionally done. State v. Gordon, 191 Mo. 130; State v. Elsey, 201 Mo. 572. (9) The court committed reversible error in giving instruction 14, by various limitations in said instruction curtailing the right of self-defense, and particularly this part thereof: "Nor is anyone justified in using more force than is necessary to get rid of his assailant. But if he does not bring on the difficulty, or provoke it, nor voluntarily engage in it, he is not bound to flee to avoid it, but may resist with adequate and necessary force until he is safe." Neither the term "bring on the difficulty" nor "provoke it" nor "voluntarily engage in it" is defined, and that portion which states that he "may resist with adequate and necessary force until he is safe" is clearly contrary to the law which guarantees to the defendant the right to act on appearances regardless of whether or not in fact he was in imminent peril; and that portion of said instruction which states "nor is anyone justified in using more force than is necessary to get rid of his assailant," is also contrary to the law of self-defense. Under said instruction if a man brought on the difficulty or provoked it, or voluntarily engaged in it, he would have to flee from it. There was no evidence that defendant brought on the difficulty or provoked it. Consequently there was nothing to base that part of the instruction on, even if it had properly declared the law. State v. Partlow, 90 Mo. 608; State v. Edwards, 203 Mo. 540; State v. Hopper, 142 Mo. 483; State v. Gordon, 191 Mo. 130; State v. Rapp, 142 Mo. 447; State v. Garrett, 170 Mo. 397; State v. Reed, 154 Mo. 122; State v. Adler, 146 Mo. 26; State v. Venable, 117 Mo.App. 50; State v. Beaty, 190 Mo. 286; State v. Feeley, 194 Mo. 322. (10) The court committed reversible error in refusing to give defendant's instruction in the nature of a demurrer to the evidence, at the close of the case, for the reason that the testimony showed overwhelmingly that the defendant was insane at the time of the alleged offense, and also whatever part defendant took in the difficulty was in his own, or his wife's defense. State v. Gordon, 199 Mo. 561. (11) The court committed reversible error in giving instruction 16, on behalf of the State, in which he attempted to define insanity as a defense. Said instruction is too lengthy for ordinary jurors to comprehend, is misleading and confusing to the minds of the jurors where self-defense is also interposed; said instruction assumes that the defendant was guilty of the offense charged, and that insanity is the only defense interposed by said defendant. Said instruction contains a statement with reference to statements made by the defendant and how the jury are to regard such statements, thereby connecting insanity with the defendant's statement and confusing the jury.

Elliott W. Major, Attorney-General, and Chas. G. Revelle, Assistant Attorney-General, for the State.

(1) Defendant was in custody at all times after the information was filed, and, notwithstanding he had been previously arraigned and the case continued from one regular term to another regular term, his application wholly fails to state that the facts on which he grounds same came to his knowledge after the last preceding continuance of the case. The right to a change of venue is purely statutory, and the only way by which the same can be exercised is by a compliance with the statutory requirements. State v. Turlington, 102 Mo 642; State v. Lanahan, 144 Mo. 31; State v. Moore, 121 Mo. 521; State v. Witherspoon, 231 Mo. 706. By reason of the inadequacy, the application was wholly insufficient and discloses upon its face a waiver of the alleged right, and this court has so expressly held. R. S. 1909, secs. 5182-5183; State v. Boone, 70 Mo. 649; State v. Clevenger, 156 Mo. 194; State v. Blitz, 171 Mo. 538; State v. Witherspoon, 231 Mo. 706. Not only does the application fail to state that this knowledge came to him after arraignment and one regular continuance, but the evidence offered in support thereof also fails to prove that such a condition existed. It being necessary to allege such fact, it is indispensable that it be proved. Again, the untimeliness of the application becomes more apparent from the record disclosure that it was not filed on the first but the thirty-seventh day of the term to which the case was continued, this being the day on which the case was set specially for trial. Thompson v. Marshall, 50 Mo.App. 145; Berlin v. Thompson, 61 Mo.App. 234. Even had the application been sufficient and filed within proper time, this court would not be warranted in reversing the judgment on this ground. The evidence in favor of and against the application was heard by the court, it having the opportunity to observe the witnesses and judge of their credibility, and that court having determined adversely to the change, such ruling will not be disturbed by this court, where, as in the present record, there is nothing to indicate an abuse of the discretion lodged in that court. State v. McCarver, 194 Mo. 734; State v. Vickers, 209 Mo. 12; State v. Albright, 144 Mo. 642; State v. Headrick, 149 Mo. 403; State v. Goddard, 146 Mo. 177. (2) The court committed no error in permitting the State to call and use as witnesses persons whose names were not indorsed upon the information. Before permitting such witnesses to testify the court invariably required the prosecuting attorney to show that at the time the information was filed he did not know of such witnesses nor their testimony, and that he did not purposely refrain from indorsing their names thereon in order to obtain an advantage of the appellant. State...