State v. Spivey

• Decision Date: 21 November 1905
• Citation: State v. Spivey, 191 Mo. 87, 90 S.W. 81 (Mo. 1905)
• Parties: STATE v. SPIVEY.
• Court: Missouri Supreme Court

90 S.W. 81

191 Mo. 87

STATE v.SPIVEY.

Supreme Court of Missouri, Division No. 2.

November 21, 1905.

1. CRIMINAL LAW—CHANGE OF VENUE—NOTICE TO PROSECUTING ATTORNEY—WAIVER.

Where, on an application for a change of venue because of the prejudice of the judge, the prosecuting attorney offered proof that one of the persons supporting accused's application was not of good reputation and that the other was reputed to be of weak mind, and there was no suggestion of want of notice until after the close of the testimony on the application, the application could not be denied for want of notice.

2. SAME—APPLICATION—FORM—HEARING.

Rev. St. 1899, § 2594, which provides that the judge shall be deemed incompetent to hear a case when he is prejudiced, or when defendant shall file an affidavit, supported by the affidavit of two reputable persons, that the judge will not afford him a fair trial, and section 2595, which declares that when defendant shall make application under oath, supported by the affidavit of two reputable persons to the truth of the allegations in the application, it shall be lawful for the judge to determine the application, require the court, on the presentation by one charged with crime of an application for a change of venue which conforms to the statutes, to grant it.

3. HOMICIDE—MURDER IN FIRST DEGREE—INFORMATION.

An information which alleges that defendant feloniously, deliberately, premeditatedly, on purpose, and of his malice aforethought assaulted decedent with a knife described, and inflicted on him a wound described, from which he instantly died, and which states that accused, in the manner aforesaid, willfully, feloniously, deliberately, premeditatedly, on purpose, and of his malice aforethought murdered decedent, charges murder in the first degree.

4. SAME — DYING DECLARATION — SUBJECT-MATTER —COMPETENCY.

A statement in a dying declaration that decedent had begged accused not more than two weeks before the fatal assault not to assault him, and that once before accused had wanted to kill him, but that decedent had induced him not to do so, is not competent as a dying declaration.

5. WITNESSES — IMPEACHMENT—CONVICTION OF CRIME—STATUTES.

The purpose of Rev. St. 1899, § 4680, providing that the conviction of a witness of crime may be proved to affect his credibility, either by the record or by his own cross-examination, is to avoid the necessity of introducing the record of conviction, and it cannot harm a defendant on trial for crime, who becomes a witness in his own behalf, to be asked as to any former conviction, as the state, to impeach him, could introduce the record of his former conviction.

6. SAME.

Rev. St. 1899, § 4680, providing that any person who has been convicted of a criminal offense is a competent witness, but the conviction may be proved to affect his credibility, either by the record or by his own cross-examination, does not conflict with section 2637, declaring that no person shall be incompetent to testify as a witness in a criminal case by reason of being the person on trial, or by reason of being the husband or wife of accused, but such facts may be shown for the purpose of affecting the credibility of the witness; section 4680 being a later statute, merely adding an exception to section 2637.

7. HOMICIDE—EVIDENCE—ADMISSIBILITY.

Where a part of a conversation between a witness and decedent was drawn out by counsel for defendant on trial for homicide, it was proper to permit the state to bring out the whole conversation.

8. SAME—MANSLAUGHTER—INSTRUCTIONS.

Where, on a trial for homicide, the evidence showed the existence of unfriendly feeling between defendant and decedent, and defendant testified that decedent had threatened to whip him, and threatened to whip him at the time of the killing, and acted as if he would draw a pistol, and that defendant then picked up a club and struck decedent, who picked up a larger club and struck back, the court should instruct on manslaughter in the fourth degree arising from heat of passion.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Leo Spivey was convicted of murder in the first degree, and he appeals.Reversed.

This cause is here upon appeal by defendant from a judgment of the circuit court of Pemiscot county, Mo., convicting him of murder of the first degree.The prosecution of this cause is predicated upon an information filed by the prosecuting attorney of Pemiscot county, Mo., on August 26, 1903, charging defendant with murder in the first degree.The name of the party charged to have been killed was John Martin, and the alleged date of the offense was the 15th day of May, 1903.A suggestion of the diminution of the record is made by the Attorney General in respect to the form of the indictment.Acting upon this suggestion, this court made a rule upon the clerk of the circuit court of Pemiscot county to transmit the original information as filed, which rule was complied with, and the information is now before us.As the correctness and validity of the information is challenged, it is well to reproduce it.It was as follows:

"In the Circuit Court of Pemiscot County, Missouri, to November Term, 1903.

"State of Missouri, County of Pemiscot—ss.

"State of Missouri v. Leo Spivey.

"L. L. Collins, prosecuting attorney within and for the county of Pemiscot and state of Missouri, upon his official oath informs the court that Leo Spivey, late of the county of Pemiscot and state aforesaid, on the 15th day of May, 1903, at the county of Pemiscot and state aforesaid, did then and there, in and upon the body of one John Martin, then and there being, unlawfully, willfully, feloniously, deliberately, premeditatedly, on purpose, and of his malice aforethought make an assault, and with a certain and dangerous and deadly weapon, to wit, a knife, which said knife was then and there of the length of eight inches, the blade of which said knife was of the length of three inches and of the breadth of one-half an inch, and which said knife he, the said Leo Spivey, in his hand then and there had and held, he, the said Leo Spivey, did then and there unlawfully, willfully, feloniously, deliberately premeditatedly, on purpose, and of his malice aforethought did strike at and stab him, the said John Martin, in and upon the neck and throat of him, the said John Martin, with the deadly and dangerous weapon aforesaid, to wit, the knife aforesaid, thereby and thus inflicting on and giving to him, the said John Martin, in and upon the neck and throat of him, the said John Martin, one mortal wound, which said mortal wound was of the length of five inches and of the depth of two inches, of which said mortal wound he, the said John Martin, at the county of Pemiscot and state of Missouri, then and there instantly died.And so L. L. Collins, prosecuting attorney aforesaid, upon his official oath as aforesaid, doth say that he, the said Leo Spivey, him, the said John Martin, in the manner and by the means aforesaid, unlawfully, willfully, feloniously, deliberately, premeditatedly, on purpose, and of his malice aforethought did kill and murder, against the peace and dignity of the state.

"L. L. Collins, Prosecuting Attorney.

"L. L. Collins, prosecuting attorney, makes oath, and says that the facts stated in the above and foregoing information are true, according to his best knowledge, information

and belief.                   L. L. Collins
                

"Subscribed and sworn to before me this the 26th day of August, 1903.

   "[Seal]              J. W. Green
                            "Clerk of the Circuit Court."
                

To this information defendant, by his counsel, on the 1st day of December, 1903, interposed a demurrer, which demurrer was by the court overruled.And upon the 15th day of February, 1904, it being at the February term, defendant filed his petition and affidavits for a change of venue from Hon. H. C. Riley, the trial judge of the Pemiscot county circuit court, which said petition and affidavits are in words and figures as follows:

"In the Circuit Court of Pemiscot County, Missouri, February Term, 1904.

"State of Missouri against Leo Spivey, Defendant.

"Now comes Leo Spivey, defendant in the above-entitled cause, and by this application and petition and change of venue states that the Honorable H. C. Riley, judge of said court, will not afford him a fair and impartial trial in said cause on account of the bias and prejudice of said judge.Defendant further says that the information leading to the belief set out above has come to his knowledge since the last term of this court.Wherefore, defendant asks that the venue of said cause be changed to some court or judge where said prejudice does not exist.

                          "Leo L. Spivey
                

"Leo Spivey, the above-named defendant being duly sworn, upon his oath says that the Honorable H. C. Riley, judge of the circuit court of Pemiscot county, in which the above-entitled cause is now pending, and in which this defendant stands charged by information with murder in the first degree, will not afford defendant a fair trial in said cause, for the reasons above set forth in the foregoing petition for a change of venue.

                          "Leo L. Spivey
                

"Subscribed and sworn to before me this the 15th day of February, 1904.

                 "J. W. Green, Cir. Clk
                

"State of Missouri, County of Pemiscot—ss.

"Geo. W. Dashman and D. R. Lee, having first been duly sworn, upon their respective oaths state that they have seen and heard read the above and foregoing petition and affidavit of the defendant, Leo Spivey, for change of venue, and state that the facts set out therein are true, and that the said judge of said court will not afford defendant a fair and impartial trial in said cause for the reasons alleged, and that they are not of kin or counsel for the defendant in

said cause.               Geo. W. Dashman.
                                        "D. R. Lee.
                

"Subscribed and sworn to...