State v. Tettaton

• Decision Date: 18 December 1900
• Citation: 159 Mo. 354,60 S.W. 743
• Parties: STATE v. TETTATON.
• Court: Missouri Supreme Court

60 S.W. 743

159 Mo. 354

STATE v. TETTATON.

Supreme Court of Missouri, Division No. 2.

December 18, 1900.

CRIMINAL LAW — VENUE — CHANGE — APPEAL — EVIDENCE — REVIEW — MURDER — JURY — EXAMINATION — INSTRUCTIONS — CONTINUANCE — DISCRETION.

1. Where a defendant indicted for murder saves no exception to testimony given on his motion for change of venue, made on the ground that he cannot have a fair trial in the county in which the action is pending, he cannot have such testimony reviewed on an appeal.

2. A motion in a criminal case for change of venue on the ground that defendant cannot have a fair trial in the county in which the action is pending is addressed to the discretion of the court, and its action thereon will not be

disturbed on appeal from the judgment unless abuse of discretion is shown.

3. Where the defendant was indicted for murder, and over his objections counsel were required to proceed with voir dire examination of the persons summoned as jurors prior to the time at which he was required to announce whether or not he was ready for trial, the judgment will not be reversed on that ground, in the absence of any showing that he was prejudiced thereby.

4. Where it was not stated in the motion for a continuance for absence of two witnesses that defendant could not safely proceed to trial without them, or that a subpœna had been issued for them, or that it was probable that their evidence could be procured at the next term, and the testimony of another absent witness would have been cumulative, merely, or irrelevant, the motion was properly denied.

5. A family consisted of the mother and four children. Their house burned, and after the fire the remains of five bodies, almost unrecognizable, were found in the ruins. None of the family were seen alive afterwards. Defendant was indicted for murder of the largest of the children. Held, that evidence of a physician as to the condition of the several bodies found in the ruins was not objectionable because the body of the one that defendant was accused of having murdered was not identified, and that the testimony tended to prove the commission of other crimes by him, since the evidence was proper as tending to identify the body, and to show that the death was produced by foul means.

6. Where defendant, indicted for murder, was found near the place of the crime with wounds on his head, which the state claimed were self-inflicted, and physicians shaved his head to dress the wounds, their evidence as to the condition of the wounds as they existed after his head was shaved was not objectionable on the ground that having his head shaved was involuntary, and that he was thereby compelled to give evidence against himself; the shaving of the head being necessary to dress the wounds.

7. A mother and her four children were murdered, and their house, containing their bodies, was burned. At the trial of the defendant for the murder of the eldest child, a witness was permitted to testify that the next day after the homicide defendant said that the mother did not feel kindly towards him, on account of some matters growing out of his father's estate. Held that, if defendant had been on trial for the murder of the mother, the evidence would have been admitted as tending to show the existence of unfriendly relations between them, and a motive for the killing, and as the homicide of the mother and children was a part of the same tragedy, and for the same purpose, there was no reversible error in admitting the evidence.

8. Where defendant was on trial for a murder alleged to have been committed by him by shooting the deceased with a revolver, and immediately after the homicide the house containing the body of deceased was burned, and iron parts of a revolver containing no cartridges were found in the ruins, it was not error to admit evidence that empty cartridges were found about the burned building a week or more after the homicide, over the objection that the finding was too remote from the date of the homicide, as the evidence was competent to sustain the charge that the killing was done with a pistol.

9. A widow and her four children were murdered, and the house containing their bodies was burned. The son by a former marriage of her deceased husband, who was administrator of his estate, was indicted for the murder of the eldest of the children. The widow had sued defendant, and the petition and summons were read to the jury at the trial under the indictment. She had also filed a petition that her homestead be set off in the lands of her deceased husband, and this petition was read at the trial. Held, that the evidence was competent, as tending to show motive, to prevent the admeasurement of the homestead, as on the death of the widow and her children he would immediately come into possession of his father's estate.

10. Where on a trial for murder there was no evidence of provocation or heat of passion, and the only question was as to the identity of the murderer, it was not error to charge that "deliberately" means in a cool state of blood; that is, not in a heat of passion caused by some just provocation to passion.

11. On a trial for murder an instruction that the jury were charged with no responsibility with respect to the punishment was not error, as it simply told the jury what the law was, and nothing more.

12. On a trial for murder the court charged that if the jury found beyond a reasonable doubt that the defendant shot and wounded the deceased with a bullet fired from a pistol which defendant held, and that such shot was fired by him, and that such shooting was done willfully, deliberately, premeditately, and with malice aforethought, and that on the same day deceased died in consequence of such shooting and wounding, they should find the defendant guilty of murder in the first degree. Held, that such instruction was justified by the evidence, which showed that there was a wound in the head of deceased, which was made from a missile discharged from a firearm, and that such wound was sufficient to produce death, and was not erroneous, as assuming that deceased was killed by a bullet.

13. On a trial for murder, defendant requested the court to charge that if the jury believed from the evidence, beyond a reasonable doubt, all the facts necessary to prove that the defendant did kill the deceased, yet if the state had failed to establish the mode and manner of the killing, beyond the fact that he was killed with a deadly weapon, the law presumed the death to have been caused by a wound intentionally inflicted with a deadly weapon, and, nothing further appearing, that the offense in such case was murder in the second degree. The whole family, consisting of the mother and four children, including the deceased, were killed, and the house containing their bodies burned. There was no evidence of heat of passion, or of provocation of passion, on the part of defendant. Held, that the court did not err in refusing the request, as the killing was either murder in the first degree or nothing, and it would have been error for the court to have instructed on any other degree of homicide.

14. On a trial for murder, where there was no eyewitness of the homicide, and the evidence was circumstantial, defendant requested the court to charge that, if not satisfied of defendant's guilt beyond a reasonable doubt, the jury ought to acquit, "although you may believe the probabilities of his guilt to be greater than the probabilities of his innocence," and "if any one of the jury, after having consulted with his fellow jurymen, should entertain a reasonable doubt, the jury cannot in such case find the defendant guilty," and that if, after hearing all the testimony, they could infer any reasonable theory or hypothesis of the defendant's innocence, they should acquit him, "although there may be stronger probabilities of his guilt than of his innocence, the policy of the law being that it is better that ninety and nine men escape punishment than that one innocent man be punished"; also that they must be satisfied beyond a reasonable doubt that the body found was the body of the one that defendant was accused of having killed, "and, in this connection, that mere opinions of witnesses are not sufficient to establish such fact." Held, that it was not error for the court to strike out of the instructions the words quoted, as tending to confuse the jury.

15. A family consisting of deceased, his mother, brother, and two sisters were killed, and the house containing the bodies burned. Defendant was a half-brother of deceased, and administrator of their father's estate. There were trouble and litigation between defendant and his stepmother, and on the evening of the homicide he went to her house to pay the balance of a judgment she had recovered against him. While the house was burning he was found near the yard, pretending to be unconscious from wounds on his head which he claimed were inflicted by two masked robbers who came to the house and struck him with their pistols; but there was evidence that the wounds were cuts made by himself, and his bloody knife was found near where he lay. The iron parts of his revolver were found in the ruins of the house, and empty cartridges were found near a few days after. The body of deceased was identified by the family physician, and had a gunshot wound in the head, which caused his death. Held, that a verdict of murder in the first degree was justified.

Appeal from circuit court, Dunklin county; J. L. Fort, Judge.

James H. Tettaton was convicted of murder, and he appeals. Affirmed.

J. P. Tribble and T. R. R. Ely, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, Asst. Atty. Gen., for the State.

BURGESS, J.

The defendant was indicted at the May adjourned term, 1899, of the circuit court of Dunklin county, for the murder of George Tettaton on the night of the 26th of April, 1899. At the October term following he was tried,...