State v. Wisdom

• Decision Date: 31 October 1884
• Citation: 84 Mo. 177
• Parties: THE STATE v. WISDOM, Appellant.
• Court: Missouri Supreme Court

84 Mo. 177

THE STATE

v.WISDOM, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from McDonald Circuit Court.--HON. M. G. MCGREGOR, Judge.

AFFIRMED.

H. C. Young and C. W. Thrasher for appellant.

(1) The court below committed error in refusing to grant a change of venue in this case for which this cause should be reversed. People v. Yoakum, 53 Cal. 566; State v. Ware, 69 Mo. 332; State v. Guy, 69 Mo. 430; State v. Bohannon, 76 Mo. 562. (2) Even in case of an application for a continuance this court has uniformly held that the discretion of the trial court is a sound legal discretion, and not merely a personal discretion; and when it appears from the record that the trial court has improperly or erroneously exercised that discretion, to the injury of a party, this court will correct the error. State v. Burns, 54 Mo. 274; State v. Sayers, 58 Mo. 585; Leabo v. Goode, 67 Mo. 126. (3) The jurors who heard the evidence on the application for a change of venue were incompetent to try the cause. (4) The judgment is void on the record for want of jurisdiction, because the record fails to show that it was rendered at any term of the circuit court of McDonald county authorized by law. (5) The court committed error in giving instruction number three for the state. It is argumentative, it fails to state what constitutes in law “sufficient reason, or cause, or extenuation,” or what constitutes ““just cause or provocation” for the use of a deadly weapon. Instruction number three is further erroneous in permitting a verdict of guilty on the facts stated in it without the jury finding defendant guilty beyond a reasonable doubt. (6) The court erred in not explaining or defining the meaning of the terms “adequate, or reasonable cause, or provocation,” used in instruction number five, given on its own motion. State v. Sharp, 71 Mo. 218; State v. Hill, 69 Mo. 451. (7) The court erred in giving instruction number seven. It ignores all the elements necessary to constitute murder in the first degree, except deliberation. (8) Instruction number ten given by the court is erroneous in telling the jury that defendant, although a deputy sheriff, was only authorized to carry arms about his person “for the proper and necessary discharge of the duties of his office.” R. S., secs. 1274-5. (9) The court erred in giving to the jury, of its own motion, instruction twelve. The plain import of the last clause or paragraph in that instruction is, that in passing on and considering the evidence of the defendant, the jury may not only consider the fact that he is the defendant on trial, but, also, any other facts or circumstances affecting the credit to be given the testimony of any witness in the case. (10) The court erred in refusing to give instruction fifteen asked by the defendant to the effect that if the jury find from the evidence that the death of the deceased can be accounted for on any reasonable hypothesis, except the guilt of the defendant, they should find him not guilty. 3 Greenl. Ev., sec. 29.

D. H. McIntyre, Attorney General, for the state.

(1) The court heard the testimony of a number of witnesses upon the application for a change of venue and found from such testimony that defendant could have an impartial trial in McDonald county. The finding of the court on that issue is conclusive and will not be disturbed unless it appears to this court that palpable injustice has been done. State v. Sayers, 58 Mo. 585; State v. Whitton, 68 Mo. 91; State v. Guy, 69 Mo. 430. There is nothing in this case to show that the trial court abused its discretion and nothing to call for the interference of this court. (2) No exception was saved to the overruling of the application for continuance, and it is not alleged in the motion for new trial that the court erred in denying the motion to continue. It is too late to make any objection upon that point in this court. State v. Preston, 77 Mo. 294, and cases cited. (3) The motions for a special venire and to exclude certain jurors from the panel were properly overruled. (4) The evidence of the witness, Williams, as to the apparent range of the ball in the deceased was competent. State v. Babb, 76 Mo. 501; Goodwin v. State, 4 Crim. Law Mag. 565. If the evidence was improper, still it was harmless. State v. Holme, 54 Mo. 154; State v. Ellis, 84 Mo. 207. (5) The instructions given by the court properly declared the law, and defendant has nothing to complain of. State v. Lewis, 74 Mo. 222; State v. Erb, 74 Mo. 199; State v. Kotovsky, 74 Mo. 247; Foster's Crown Law, p. 255; State v. Holme, 54 Mo. 153; State v. Alexander, 66 Mo. 158; State v. West, 69 Mo. 401; State v. Curtis, 70 Mo. 594; State v. Hollensheit, 61 Mo. 303; State v. Maguire, 69 Mo. 197; State v. Zorn, 71 Mo. 415; State v. Cooper, 71 Mo. 436. (6) The fifteenth instruction for defendant was properly refused, because it was erroneous. It was not necessary in order to convict that the evidence should exclude every hypothesis but the guilt of the accused. State v. Schoenwald, 31 Mo. 147; State v. Christian, 66 Mo. 138.

DEARMOND, C.

Defendant was indicted at the February term, 1884, of the McDonald circuit court, for murder in the first degree, tried at an adjourned term of said court begun in May and extending into July following, and found guilty of the capital offence charged. From that judgment he has appealed to this court.

From the evidence on the part of the state it appears that on the evening of December 3, 1883, a number of young men went from the village of Saratoga seven or eight miles to a party or dance at the house of one Clark in said county. Of this party, defendant and William Judy, of whose murder defendant stands convicted, were two. Defendant had no horse and Judy allowed him to ride his horse, defendant riding in the saddle and Judy behind. At Clark's, defendant who was acting deputy sheriff, arrested one William Ralston and put him in charge of two of the young men from the neighborhood of Saratoga, Foley and Miller. When the party were preparing to start homeward, Judy, who had mounted his horse, objected to defendant's riding back with him, but wanted him to ride with some other one of the boys. Defendant insisted that he would ride back with Judy, and threatened to blow Judy's brains out if Judy did not allow him to ride back as he came. Defendant then got onto the horse, behind Judy, who wanted him, if he would ride, to ride in the saddle as he rode before. Defendant refused, said he had rode in the saddle coming and Judy must occupy it returning. Judy then wanted defendant to take the horse and let him ride with some of the boys. Defendant said no, he should ride where he was, and urged him with oaths and threats, to “light out” or “move on.” Judy and defendant then started together on the same horse, defendant with a pistol in his hand. When they had gone three hundred yards or four hundred yards, they were at a place where the road forks. There the horse took the wrong road, and defendant, with curses and threats, directed Judy to turn him. Judy replied that defendant had the bridle reins in one hand and a pistol in the other, and for him to turn up. Defendant said: “I know it and you turn or I will kill you.” A few seconds after, a shot was heard, and defendant exclaimed: “Take that, g____ d____n you!”

The parties who were close by saw no more of defendant, but heard the horse galloping off on the river road. Judy was found lying on his face in the road where the shot and the threats and exclamation of defendant were heard, shot above and back of the right ear, and dead. Some of the witnesses say with both hands gloved and thrust into the breast pockets of his overcoat. The witnesses differ in their remembrance of the words used, but substantially agree that William Judy was killed in McDonald county under facts and circumstances about as here stated. It appears that Ernst Lewis and some of the witnesses who came from Clark's after the shot was fired, but did not then know of its effect, followed rapidly for two or three miles on the road they found defendant had taken. None of them made clear their object in so following defendant, though some of them say he cursed them and dared them to follow. There was some evidence, too, that Lewis was dissatisfied with defendant's action in insisting on riding with Judy, and said if defendant would get down or let Judy get down, he would “shoot it out” with defendant. Also, that Lewis was a friend of Judy's, and wept when he found him dead. They were not close by when the shot was fired.

Defendant introduced in evidence the certificate of his appointment as deputy sheriff, with the endorsement of the circuit judge's approval of the appointment, and his oath of office as such deputy. He, also, read in evidence what it was admitted Ernst Lewis would swear, if present, namely: “That on the night of the shooting of Judy, there was an agreement between said Lewis and the parties who were following this defendant, that they would kill the defendant that night before he got home, and that defendant at the time of the shooting had his pistol out to defend himself.” Defendant testified about his riding to Clark's with Judy; that he was acting as a deputy sheriff, and had a warrant for Ralston and arrested him after the party broke up; that he and Judy were on friendly terms; that after he had turned Ralston over to Miller and Foley, he went out, but did not see them. He continued: “I then went to Mr. Judy's horse. I said to Mr. Judy, ‘Let me ride with you.’ He said, ‘no.’ Then I said, ‘I must ride.’ Ernst Lewis says, ‘Don't you get up there, or I will shoot you.’ Judy said to me, ‘I did not want you to ride here, because some of the boys here have threatened to shoot at you.’ I told Judy to get his horse out of here. When about fifty or sixty yards out he called Lewis, and Lewis came and leveled his pistol on me and I drew my pistol. I then told Judy to get us out, to make...