State v. Terry

• Citation: 172 Mo. 213,72 S.W. 513
• Parties: STATE v. TERRY.
• Decision Date: 03 February 1903
• Court: United States State Supreme Court of Missouri

72 S.W. 513

172 Mo. 213.

STATE v. TERRY.

Supreme Court of Missouri, Division No. 2.

February 3, 1903.

CRIMINAL LAW—APPEAL—MOTION FOR NEW TRIAL—EVIDENCE—HEARSAY—CONCLUSION OF WITNESS—INSTRUCTIONS.

1. Under Rev. St. 1899, § 2689. providing that motions for a new trial shall state the grounds therefor in writing. etc., a judgment of conviction will not be reversed for errors in the exclusion of evidence where no complaint in this regard was made on motion for a new trial.

2. In a prosecution for murder, evidence that deceased stated to defendant after he was shot that defendant was not to blame for the difficulty was inadmissible, as hearsay.

3. The statements were further inadmissible as being merely conclusions.

4. Failure of the court in a criminal prosecution to instruct that defendant was a competent witness in his own behalf was harmless, where defendant actually testified without objection, and the instructions made no discrimination between him and other witnesses.

Appeal from circuit court, Pemiscot county; Henry C. Riley, Judge.

W. H. Terry was convicted of murder, and appeals. Affirmed.

At the February term, 1902, of the circuit court of Pemiscot county, defendant was convicted of murder in the second degree and his punishment fixed at 10 years' imprisonment in the penitentiary, under an information theretofore filed in the office of the clerk of the circuit court of said county by the prosecuting attorney thereof, charging him with having at said county on the 23d day of June, 1901, unlawfully, willfully, feloniously, deliberately, premeditatedly, on purpose, and of his malice aforethought, with a pistol, shot and killed one Charles Stewart. After unsuccessful motions for new trial and in arrest, defendant appeals.

The salient facts are about as follows: On June 23, 1901, and for some time prior thereto, the defendant was employed in the management of a poolroom which was adjacent to a saloon in Pascola, Pemiscot county, Mo. On that day there were numerous persons at the rooms in charge of defendant, among whom was Charles Stewart, the deceased. It seems that Stewart was crippled and deformed until he was unable to walk or move about in an upright position. Deceased, with others, had been drinking considerably during the day. None of them, however, as the evidence shows, had become thoroughly intoxicated. At about 11 o'clock p. m. on the day of the homicide, defendant and one Dr. Wells were engaged in playing a game of pool. Deceased and Dr. Wells were on intimate terms, and deceased had been playing pranks on the doctor by interfering with the pool balls. Just previous to the homicide he asked Dr. Wells who was running the house, when defendant stated that he (Terry) was; and, as deceased asked the question, he, with his left hand upon the pool table, raised himself up as though he was going to again move the pool balls, and, as defendant made reply to the question asked by deceased of Dr. Wells, he drew from his pocket a 38-caliber revolver, and, taking deliberate aim, shot Stewart; the ball passing entirely through his body, and giving him a mortal wound, from which he died, after lingering in much pain, on the 31st day of July, 1901. Immediately after shooting Stewart, defendant covered Dr. Wells with his weapon, and caused him to throw up his hands. Then defendant left the room, and was located some time afterwards in Little Rock, Ark. He returned to Missouri without requisition papers. A trial was had, and the jury failed to agree. Upon second trial he was found guilty of murder in the second degree, and his punishment fixed at 10 years' imprisonment in the penitentiary. He appeals. Evidence was introduced by defendant to show that deceased had made threats against him, and that he was a rough, violent man. Defendant set up self-defense,...