State v. Whitsett

• Decision Date: 31 December 1910
• Citation: 134 S.W. 555,232 Mo. 511
• Parties: STATE v. WHITSETT.
• Court: Missouri Supreme Court

134 S.W. 555

232 Mo. 511

STATE v. WHITSETT.

Supreme Court of Missouri, Division No. 2.

December 31, 1910.

Rehearing Denied February 14, 1911.

1. HOMICIDE (§ 340)—APPEAL—HARMLESS ERROR —INSTRUCTION.

Under Rev. St. 1899, § 2369 (Ann. St. 1906, p. 1457 [Rev. St. 1909, § 4903]), providing that any person found guilty of murder in the second degree shall be punished according to the verdict, though the evidence shows him guilty of a higher degree, and section 2535 (page 1509 [Rev. St. 1909, § 5115]), providing that no judgment of conviction shall be affected because the evidence shows that the defendant is guilty of a higher degree of the offense, a person found guilty of murder in the second degree under an indictment charging murder in the first degree cannot complain of an instruction on the lower grade of the offense, though the evidence tended to show him to be guilty of the higher degree.

2. CRIMINAL LAW (§ 938) — NEW TRIAL — NEWLY DISCOVERED EVIDENCE—ELEMENTS.

To entitle accused to a new trial for newly discovered evidence, he must show that the evidence has come to his knowledge since the trial, that it was not owing to want of diligence that it did not come sooner, that it would probably produce a different result, that it is not cumulative only, that the affidavit of the witness himself should be produced or its absence accounted for, and that the object of the testimony is not merely to impeach the character or credit of a witness.

3. CRIMINAL LAW (§ 942) — NEW TRIAL — NEWLY DISCOVERED EVIDENCE—IMPEACHING EVIDENCE.

Newly discovered evidence that a witness for the state had been convicted of a felony and also of violating an ordinance, which convictions he denied on cross-examination, is not ground for a new trial, being merely impeaching evidence.

4. CRIMINAL LAW (§ 941) — NEW TRIAL — NEWLY DISCOVERED EVIDENCE — CUMULATIVE EVIDENCE.

Where the testimony of a state witness was impeached by three witnesses for defendant, newly discovered evidence of former convictions of the witness was not ground for new trial, being merely cumulative.

5. CRIMINAL LAW (§ 939) — NEW TRIAL — NEWLY DISCOVERED EVIDENCE—DILIGENCE OF ACCUSED.

Newly discovered evidence of convictions of a witness for the state is not ground for new trial, where no diligence was shown by accused or his counsel in investigating the former life of the witness, though the fact that he would testify and the nature of his testimony were known long before the trial.

6. CRIMINAL LAW (§ 628)—TRIAL—PRELIMINARY PROCEEDINGS—INDORSEMENT OF WITNESSES ON INFORMATION.

The failure to indorse the name of a witness for the state on the information is not

ground for reversal, where the defendant knew before the trial that the witness was to appear.

7. CRIMINAL LAW (§ 936)—NEW TRIAL—SURPRISE.

Failure to move for a continuance on the ground of surprise, when a witness is called by the state whose name was not indorsed on the information, is a waiver of any right to complain of surprise.

8. WITNESSES (§ 79)—COMPETENCY—DETERMINATION.

Whether a witness is sane is a question going to his competency and is for the court and not for the jury.

9. WITNESSES (§ 79)—COMPETENCY—DETERMINATION.

The contention that the testimony of a witness should have been excluded because he was of unsound mind, and that it was error to refuse to permit defendant to prove, after he had testified, that he was of unsound mind, cannot be sustained, where there was no request that the court examine the witness on his voir dire to discover his condition of mind nor to exclude the testimony, on the ground stated.

10. HOMICIDE (§§ 156, 158)—EVIDENCE—MALICE.

In a prosecution for homicide, testimony that, three months after the killing, defendant said that he wanted to sell a brother of the deceased a monument for the grave, and testimony as to threats by defendant against deceased two years before the crime and as to a remark indicating malice toward the deceased, made by defendant in the graveyard, where, and some months after, deceased was buried, was admissible to show malice on the part of defendant.

11. HOMICIDE (§ 158)—EVIDENCE—THREATS— REMOTENESS.

The competency of threats by defendant, as evidence in a prosecution for homicide, is not affected by their nearness or remoteness, which go only to the weight of the evidence.

12. CRIMINAL LAW (§ 1055)—APPEAL—PRESENTATION OF QUESTIONS IN TRIAL COURT— ARGUMENTS OF COUNSEL.

Where defendant failed to except to the court's failure to rule on an objection to an argument of the prosecuting attorney, the point is not open for review.

13. CRIMINAL LAW (§ 1129)—APPEAL—RECORD —MATTERS PRESENTED FOR REVIEW.

The court on appeal will not search the record for errors in instructions and in the exclusion of testimony, where they are not specifically pointed out.

Appeal from Circuit Court, Ray County; Francis H. Trimble, Judge.

John Whitsett was convicted of murder in the second degree, and appeals. Affirmed.

Jas. L. Farris, Jr., for appellant. E. W. Major, Atty. Gen., and Jno. M. Atkinson, for the State.

BURGESS, J.

At the October term, 1909, of the circuit court of Ray county, under an information charging him with murder in the first degree for the killing of Albert Albright, the defendant was convicted of murder in the second degree, and his punishment assessed by the jury at imprisonment in the penitentiary for 30 years. From the judgment of conviction defendant appeals to this court and assigns error.

Albert Albright, the deceased, was a farmer and school teacher living in the northwest part of Ray county. For some months prior to his death he had been teaching school at a place about four miles north of his home. On the 29th day of October, 1908, about 4 o'clock in the afternoon, he left his school, and, as was his custom, drove towards home in a buggy. About 6:30 that evening, he was traveling south along the public road, known as the "Slip-up" road, and when about 210 feet northwest of the residence of William Keene he was shot from ambush, and his body was found on the public roadside, pierced by five bullet wounds. There was no witness to the tragedy; but neighbors heard the report of the shotgun at the time, as well as the noise of a team running away. A little north of where the body was discovered were found the hat and whip of the deceased, and a short distance further north were found gun-wads scattered in the public road. There were some trees and underbrush on the east side of the road, near the scene of the killing, and, also, on the east side near and opposite the point where the gun-wads were found was a shallow ravine containing considerable undergrowth and deadwood.

Whitsett and the deceased lived on adjoining farms, about a mile and a half distant from the home of William Keene, and had some serious difficulty over a boundary fence about two years prior to the tragedy. They had an encounter, one using a rock and the other a rifle, and Albright shot out one of Whitsett's eyes. A few months thereafter Albright was tried in the circuit court of Ray county upon the charge of assault with intent to kill Whitsett, and was acquitted on the grounds of self-defense. The ill feeling engendered by the trouble and strife between the two men continued, the evidence shows, until the day of Albright's death, and the defendant made many threats against the deceased.

The defendant endeavored to prove an alibi. He did not testify at the trial; but he did testify at the preliminary hearing and a part of his testimony given at that time was introduced by the state as admissions against him, and the defendant introduced the remainder of such testimony. According to this testimony, defendant left his home on the morning of the day the killing occurred, and went to the house of James Gulley, a neighbor, and got his shotgun, which he loaned to Gulley some months before. He took his shotgun home, reaching there between 2 and 3 o'clock in the afternoon. He then left his home, with a pistol in his pocket, placed the shotgun in the smokehouse, and proceeded to the home of William Keene, where he was informed by Mrs. Keene that Mr. Keene and his grandson, Grafton Keene, had gone to Lawson. Defendant then went to the home of James Bassett, less than a quarter of a mile distant from the Keene home, and north thereof. Some time before sundown, the defendant, as he testified, parted with Mr. Bassett in a cornfield, where Bassett was gathering corn and throwing it into a wagon. This cornfield, as the evidence shows, lay between the Bassett and Keene homes, and the place where the men parted was less than an eighth of a mile from the scene of the killing. By actual experiment it was shown that the distance could be walked in five minutes. After parting with Mr. Bassett, the defendant proceeded south at an ordinary gait, to the southwest corner of the Keene house, where he turned east on the public highway, and had gone but a little distance in that direction when he heard the report of a shotgun. He turned back and went to the Keene house, where he stayed for about half an hour. While there, one Wick Bowen, a neighbor, came along and informed the people in the house that there was a man shot in the public road and that he thought he was dead. Whitsett did not go out with the others to see who the dead man was, but excused himself, saying that he could not see, and then left for his home. He further testified at the preliminary hearing that he did not know until the following morning who it was that was shot and killed, and then Grafton Keene was the person who gave him such information. On the way to the Keene residence that morning, he saw and had some conversation with one John S. Carey. The defendant's family, according to his testimony, stayed at the home of William Carey, a neighbor, the night of the tragedy.

The evidence on the part of the state showed that the deceased was wearing two overcoats at the time he was shot and...