State v. Turlington
| Decision Date | 27 January 1891 |
| Parties | The State v. Turlington, Appellant |
| Court | Missouri Supreme Court |
Appeal from Cooper Circuit Court. -- Hon. E. L. Edwards, Judge.
Affirmed.
W. S Shirk for appellant.
(1) The plea in abatement to the indictment should have been sustained. The findings of the grand jury must be their own uninfluenced by the promptings or suggestions of others. Lewis v. The Comers, 74 N.C. 194; United States v. Kilpatrick, 16 F. 765; Ex Parte Ass'n, 8 Phil. 478. (2) The court erred in refusing to grant defendant a change of venue. Leams v. State, 84 Ala. 410; State v. Billings, 77 Ia. 417; State v Loe, 98 Mo. 609. Under the circumstances of this case the court should have granted the change without formal supporting affidavits. R. S. 1889, sec. 4156. (3) The court erred in refusing to grant defendant's application for a continuance. He should have been given an opportunity to prove the facts set forth in the affidavit. The evidence desired, as shown by the application, would have proved something more than an uncontrollable impulse; it would have shown a mind diseased to such an extent as rendered him wholly irresponsible for the act alleged against him in the indictment -- a mania, overruling and destroying reason. Dacy v. The People, 116 Ill. 555; 4 Am. and Eng. Cy. Law, bottom of page 716, note 10, and list of authorities cited. (4) It was error to admit the evidence of James H. Johnson and C. G. Gibson, as to Cranmer's dying declarations. Dr. S. P. Hurt, one of the attending physicians, testifies that after the bullet had been cut out and the wounds dressed, and after Cranmer had rested and become quiet, that Cranmer asked the doctors, "Boys, tell me what my condition is, you know I am not afraid to die." This was long after his conversation with Johnson and Gibson, and proves conclusively that, up to the time when he asked the doctors to tell him his condition, he had not abandoned all hope of life, and believed himself about to die. It follows that such was not his state of mind when talking to Johnson and Gibson, and his declarations made under such circumstances were not admissible. State v. Chambers, 87 Mo. 406; State v. Simon, 50 Mo. 370; State v. McCannon, 51 Mo. 160; State v. Draper, 65 Mo. 365. (5) The court committed error in admitting in evidence the letter written by F. J. Burke to defendant Turlington. There was no proof whatever of any conspiracy or confederation between defendant and Burke, rendering the declarations or statements by Burke contained in the letter admissible against Turlington, nor was there anything in the letter which contradicted or tended to contradict the evidence of said Burke given at the trial. It was, therefore, entirely hearsay, and wholly incompetent, and greatly prejudicial to defendant. Besides it was written long after the commission of the act. (6) The court erred in refusing the sixth and eighth instructions asked by defendant, and in failing to instruct the jury upon the state of facts sworn to by the defendant. It was the duty of the court to do this. State v. Anderson, 86 Mo. 309. (7) The court should have instructed the jury as to manslaughter in the first and fourth degrees. In attempting to escape jail defendant was only guilty of a misdemeanor, inasmuch as he was only confined for a misdemeanor. R. S. 1889, sec. 3705. Turlington testified that he acted without a design to kill Cranmer, and that the act of shooting was involuntary. The killing occurred while perpetrating a misdemeanor. This brings it within the definition of manslaughter in the first degree. R. S. 1889, sec. 3465. And the same may be said as to manslaughter in the fourth degree. R. S. 1889, sec. 3477. And, while not requested to instruct as to these degrees, it was, nevertheless, the court's duty to do so. State v. Palmer, 88 Mo. 568; State v. Banks, 73 Mo. 592. (8) The indictment is bad in two particulars: First. It is unintelligible and does not advise the accused how, or with what, or in what manner, he is charged with having inflicted upon Cranmer the wound that caused his death. Second. The indictment is bad, also, because it alleges that the two defendants made an assault on Cranmer, and with a certain pistol, which they, in their right hand had and held, etc. State v. Gray, 21 Mo. 492.
John M. Wood, Attorney General, and John R. Walker and G. W. Johnston for the State.
(1) The court did not err in overruling defendant's plea in abatement to the grand jury. State v. Bleekly, 18 Mo. 428; R. S. 1889, secs. 4067, 4068, 6061; State v. Hart, 66 Mo. 213; State v. Holcomb, 86 Mo. 371. (2) The judgment should not be reversed because of the remarks of the judge in his charge to the grand jury. Thompson & Merriam on Juries [Ed. 1882] secs. 599, 600. (3) The court committed no error in overruling the application for a change of venue. The defendant failed to comply with the statutory requirements. Railroad v. Frazer, 25 Neb. 42; 40 N.W. 604; State v. Guy, 69 Mo. 432; State v. Holcomb, 86 Mo. 371; State v. Hunt, 91 Mo. 490; State v. Rider, 95 Mo. 474; State v. Brownfield, 83 Mo. 448. (4) The court rightly refused a continuance. Walton v. State, 79 Ga. 446. The testimony of the alleged absent witnesses would not have made out the defense of insanity. State v. Hayes, 16 Mo.App. 560; State v. Erb, 74 Mo. 203; State v. Kotovsky, 74 Mo. 248; State v. Dale, 89 Mo. 579; Freleigh v. State, 8 Mo. 611. (5) The dying declarations of deceased were competent. State v. Kring, 11 Mo.App. 92; 74 Mo. 612; State v. Draper, 65 Mo. 335; State v. Wensell, 98 Mo. 137. (6) The letter of F. J. Burke was rightly admitted for purposes of impeachment. State v. Stein, 79 Mo. 330; Prewitt v. Martin, 59 Mo. 325; Waddingham v. Hulett, 92 Mo. 528. (7) Instruction, numbered 6, asked by appellant, was properly refused. State v. Dierberger, 96 Mo. 666; State v. Fuller, 96 Mo. 165; State v. McNally, 87 Mo. 644. Besides the instruction not being based on any evidence given in the case was for that reason properly refused. State v. Chambers, 87 Mo. 406; State v. Herrell, 97 Mo. 105; State v. Little, 67 Mo. 624. (8) Instruction, numbered 8, asked by appellant, was, also, rightly refused, especially in view of number 7 given for him. It is not error to refuse an instruction, even if correct, if another to the same purport is given. Condon v. Railroad, 76 Mo. 567; Walker v. Martin, 10 Mo.App. 589; State v. Cooper, 83 Mo. 698; Boone v. Railroad, 20 Mo.App. 232.
Defendant was convicted of murder in the first degree by the circuit court of Cooper county, for the killing of Thomas C. Cranmer. From the judgment he has appealed to this court.
The indictment upon which the conviction was had is as follows:
The sufficiency of this indictment was questioned.
To the indictment defendant interposed a plea in abatement assigning as grounds therefor: First, that the judge, in his charge to the grand jury, used improper and prejudicial language, and, second, that defendants had not been given opportunity to object to the array of grand jurors, nor to the competency or qualification of any of the members thereof. There was a third ground which was not insisted upon. This plea was supported by the affidavit of the official stenographer of the court, giving the language of the judge, in his charge to the grand jury, by which the indictment was found. This plea was overruled.
Defendant then filed an application for a change of venue from the county, on the ground of the prejudice of the inhabitants against him. This application was in due form, and was properly verified by his own affidavit. He also presented, in support of his application, the affidavit of Mrs. Sarah Earls, in which she stated that she had used diligent effort to procure the affidavits of two disinterested and credible citizens of the county, to support defend...
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