State v. West

• Decision Date: 21 May 1888
• Citation: 95 Mo. 139,8 S.W. 354
• Parties: STATE v. WEST.
• Court: Missouri Supreme Court

8 S.W. 354

95 Mo. 139

STATE v. WEST.

Supreme Court of Missouri.

May 21, 1888.

1. HOMICIDE — MURDER — EVIDENCE — DEFENDANT'S STATE OF MIND.

Where defendant, testifying in his own behalf, gave a detailed account of his feelings on the day of the homicide designed to show absence of malice, it is proper,

upon cross-examination, to ask, "Did you state to F., on the day of the homicide, that you had the same right to kill a man who was trying to steal your land as you would have if he was trying to steal your horse?" — as a foundation for proof of a state of mind different from and inconsistent with that testified to by him in chief.

2. APPEAL — REVIEW — OBJECTIONS NOT RAISED BELOW.

Where, upon cross-examination for the purpose of impeaching a witness, extracts from his evidence were read before the jury, and questions predicated thereon, and excepted to by defendant without assigning grounds for his objection, he cannot, upon appeal, give as a reason for his objection that the witness ought not to be required to answer until the whole of his evidence had been read.

Appeal from circuit court, Barton county; D. P. STRATTON, Judge.

John W. West was indicted for the murder of Samuel K. Reynolds. A trial was had, and resulted in defendant's conviction of murder in the second degree. A motion for a new trial was overruled, and defendant appeals.

E. J. Montague, for appellant. B. G. Boone, Atty. Gen., for the State.

BRACE, J.

The defendant, indicted in the circuit court of Barton county for murder in the first degree, was convicted of murder in the second decree, and his punishment assessed at imprisonment in the penitentiary for a term of 25 years. He appeals, and assigns for error that the court gave improper and refused proper instructions, failed to instruct upon the whole case, admitted illegal testimony, permitted an improper cross-examination of defendant, and of defendant's witnesses, and improper remarks to be made by the prosecuting attorney in his closing address to the jury. After a careful examination of all the instructions given, and due consideration of the objections urged by counsel against those criticised in his brief, we fail to detect reversible error in any of them. They are all such as have repeatedly received the sanction of this court, and proper to be given upon the facts in evidence in this case. The legal principles declared in those refused, so far as they were applicable to the case, and proper to be given, were previously covered in those given, and there was no error in the refusal. There was no manslaughter in the case. It was either murder in the first or second degree on the evidence, or justifiable homicide, and no error was committed in failing to instruct on manslaughter. No exception having been taken or saved to the remarks of the prosecuting attorney complained of, they are not before us for review. State v. Pagels, 92 Mo. 300, 4 S. W. Rep. 931. Of the errors assigned, there are but two that require any extended consideration.

1. The defendant, who testified as a witness in his own behalf, on his cross-examination was asked the following question: "Did you state to Si Finley, on that day, [the day of the homicide,] coming in here, that you had the same right to kill a man who was trying to steal your land as you would have if he was trying to steal your horse?" In answer to the question, he said: "I do not recollect of saying that; if I did, I did not intend saying it. I was bowed down in sorrow and terror, and I might have been misunderstood. I did not mean to say that, any way. I did not go to Reynolds after he was shot. I went in ten or twelve feet of him. I was struck with grief the moment after the shooting." No objection was made or exception taken to the other question asked and answered by the defendant, and we have only this one for consideration. The language of the statutory provision permitting a defendant in a criminal case to testify in his own behalf is that "he shall be liable to cross-examination as to any matter referred to in his examination in chief, and may be contradicted and impeached as any other witness in the case." Rev. St. 1879, § 1918. If the defendant, testifying in his own behalf, may be contradicted, and impeached the same as any other witness in the case, he is liable to have his credibility impeached by proof of former inconsistent statements. State v. Brooks, 92 Mo. 542, 5 S. W. Rep. 257, 330; 1 Greenl. Ev. § 462. The inconsistent statements, however, that can be shown for this purpose, on his cross-examination, must be confined to those made concerning a matter referred to by him in his examination in chief. In this case, the defendant, in his examination in chief, gave a detailed and graphic account of the homicide, including all the events immediately preceding and leading up to the tragedy, and those that transpired afterwards up to the time of his arrest, and took occasion, all through his evidence, when to him it seemed apposite, to speak of his feelings, thoughts, intentions, fears, opinions, and even of what he called his instinct, portraying as vividly, perhaps, as his words would permit, the condition of his mind, on the day of the homicide, before, at the time of, and subsequent to its commission, in respect of that act, in connection with his supposed rights to the land which was the subject of the controversy, and the act of the deceased in interfering with those rights, all designed to show that on that day his mind was in such condition as to be void of that malice which was an essential ingredient of the crime with which he was charged. The question asked by the prosecuting attorney tended to elicit a declaration upon his part, or lay a foundation for proof of said declaration, showing a state of mind different from and inconsistent with that testified to by him in chief, and which was the subject of continual reference by him in that examination. How, then, can it be said that by it he was being cross-examined as to a "matter not referred to by him in his examination in chief?" This exception cannot be sustained.

2. The defendant's two sons were present with him at the time of the homicide. They were examined as witnesses at the inquest before the coroner's jury, before the grand jury, and were introduced and testified on the trial on behalf of the defendant. It is urged that the cross-examination of these witnesses in regard to their previous evidence before those juries was improperly conducted. The course that this examination took, can be most satisfactorily illustrated by setting it out in full as to one of these witnesses. Elger West, the eldest son, having been examined in chief by defendant's counsel, and cross-examined by the prosecuting attorney upon the matters to which he testified to in chief, on his examination continued as follows: "I am twenty years old; was nineteen then. I testified before the coroner's jury, and also before the grand jury, in regard to this case." Here a paper was shown to witness, purporting to be the written evidence of witness, taken before the coroner's jury, and witness asked if a certain signature was his. Witness answered: "I think that is my signature." Here a paper was shown to witness, purporting to be the written evidence of witness, taken before the grand jury, and witness was asked if a certain signature was his. Witness answered: "I think that is my signature." The prosecuting attorney asked witness: "Did you not testify, before the coroner's jury, as follows, [quoting from a paper purporting to be the written evidence of witness before the coroner's jury:] `I was with my pa last Thursday or Friday, when we went through Mr. Reynolds' field. Pa stopped and talked with Mr. Reynolds. Walter and I went on. I heard Mr. Reynolds ask pa where he had been. Pa told him he had been setting posts on his eighty of land. I heard nothing else'?" To this question defendant objected, and, the objection being overruled, defendant excepted. Witness answered: "I did not testify that way." The prosecuting attorney (quoting from a paper supposed to be witness' testimony before the coroner's jury) asked witness the following question: "Did you not testify, before the coroner's inquest, as follows: `I live on the east side of Horse creek. I went from home to...