State v. Young

• Decision Date: 27 January 1890
• Citation: 99 Mo. 666,12 S.W. 879
• Parties: STATE v. YOUNG.
• Court: Missouri Supreme Court

12 S.W. 879

99 Mo. 666

STATE v. YOUNG.

Supreme Court of Missouri.

January 27, 1890.

HOMICIDE — EVIDENCE — INSTRUCTIONS — REMARKS OF COUNSEL — ACCUSED AS WITNESS.

1. Accused's affidavit for continuance at a former term is admissible to show an admission therein contained.

2. A statement to the officer that he had the right man, made in the presence of defendant, when under arrest, by a stranger to him, is not admissible, though not replied to.

3. On a trial for murder, where it appears that defendant and two others, while carrying a keg of beer at night, were met by a man who, after some words, struck defendant in the face with his lantern, and ran away, after which deceased came along and struck defendant, whereupon defendant cut him with his knife, instructions should be given as to the lower grades of homicide.

4. Under Rev. St. Mo. § 4220, prohibiting the court in a criminal case from commenting on the evidence, and section 4218, making the accused or his wife competent witnesses, but allowing such facts to be shown for the purpose of affecting their credibility, the court may instruct the jury, in weighing their testimony, to consider that he is the accused, and she his wife. SHERWOOD, J., dissenting.

5. Where the accused becomes a witness, it is not necessary, in order to make his written statement before a coroner admissible against him, to call his attention particularly to it. RAY, C. J., and SHERWOOD, J., dissenting.

6. It is error to permit the prosecuting attorney to state in his argument that "the defendant is a mean, low-down, wicked, dirty devil," and that "when we proved that defendant admitted the killing the presumption of innocence was overthrown," as this presumption continues till verdict, and an admonition by the court "to keep within the record" does not cure the error, where the obnoxious remarks were still persisted in. BRACE and BARCLAY, JJ., dissenting.

Appeal from criminal court, Lafayette county; JOHN E. RYLAND, Judge.

The defendant, being convicted of murder in the first degree, and sentenced accordingly, appeals to this court, and assigns various errors as grounds for reversal of the judgment. The indictment charges that the defendant murdered Stephen Ferguson on the 10th day of December, 1887, by stabbing and cutting him with a knife; and there was evidence to establish the charge, consisting of direct testimony, as well as admissions made by the defendant, both orally and in writing. Ferguson was found the morning of the 11th of December dead, with his throat cut. His body was lying at a point about 65 yards west of where a north and south line, if drawn between defendant's house and Bime's saloon, would strike the railroad, and the saloon was about 40 yards north of the railroad. The distance between defendant's house and the saloon was about 160 yards. The killing is said to have occurred at about 11 o'clock on the night of the 10th of December. The most friendly relations were shown to have existed between the defendant and the deceased. The latter was left in the saloon when defendant, Henry Hoppe and Peter Forks with him, obtained a case of beer, and started to go to defendant's house. The defendant was absent when going after the beer only about 15 minutes, and when he returned home his face was wounded, cut in three places, and covered with blood. His wife, mother-in-law, and his brother washed the blood off his wounds, and put him to bed. There is no dispute as to the fact of the defendant returning home from the saloon with a bleeding face, since this is shown by witnesses on both sides; and the cuts on his face were plainly to be seen two days afterwards, as shown by the testimony of the prosecuting attorney. Indeed, the scars from those wounds were visible on the face of the defendant some 14 months after the homicide occurred. The admissions of the defendant touching the killing were as follows: When charged by the marshal, Wilson, who had him under arrest, with having killed Ferguson, "he said he was not the only one in it." To Jackson, the deputy-sheriff, when shown the corpse, and asked if he knew who it was, he said: "My God, what did I do that for!" Speaking further on the subject, he recognized as his the knife shown him by Jackson. Said he had it last night, and burst out crying, and, on Wilson returning, defendant made a further statement in reference to the occurrence. "He said he was going from the saloon with a keg of beer or case of beer, whatever it was, on his shoulder, and he met a man, — he did not know who it was, — and had some trouble with him, and the man struck him with a lantern. About that time Ferguson came along, and asked him what did he strike that man for; that man done nothing to him; and he said Steve struck at him with his open hand, and `I stabbed him once.'" To the prosecuting attorney, Wilson, he made these statements: "I first asked him what made the cuts, I think it was on his face, and he said a man by name of Hare had struck him with a lantern. I then asked him why he cut Steve Ferguson, and he said he did it because Steve Ferguson struck him, and that he called him a son of a bitch, or damned son of a bitch, and I asked him if he struck him with his fist or open hand, and he said he did not know, but he did not strike him very hard, — he did not knock him down; and he said that Ferguson, after he [Ferguson] had struck him, [Young,] turned around and started away from him, [Young,] and I asked him [Young] where the knife was at the time Ferguson struck him, [Young,] and he said it was in his [Young's] pocket. After Ferguson struck him, [Young,] he put his hand in his [Young's] pocket, and took the knife out of his pocket, and opened it, and followed after Ferguson, and, when he got up to where Ferguson was, that Ferguson turned around as if he was going to strike him again, and then he cut him. I asked him how far Ferguson was from him when he started to follow after him, and he pointed to the corner of the car" (a short distance.) And the following statement was also made by defendant at the inquest, in the presence of the coroner, and reduced to writing:

"We, Peter Fouks and Henry Hoppie and myself, came out of the saloon. We met a man with a lantern, and asked him to show us the way across the railroad, down to my house. The man said he would not do it, `you son of a b___.' I asked him, `Who you call a son of a b___?' He drew back and struck me with the lantern in the face. Then he ran away, and I ran after him. Then Stephen Ferguson, the deceased, came and struck me. Then I opened the knife, and cut at him. I had the knife in my right hand. The man was standing in front of me. After I struck I fell down, too. I must have cut him, or there would not have been blood on the knife. I knew that I was striking Steve Ferguson at the time.

                                        his
                                  "CHRIS × YOUNG
                                       mark
                  "In witness of us
                      "J. M. LIVENGOOD
                      "W. R. JACKSON."
                

Other evidence of admissions of the defendant consisted of an application for a continuance made by him at a former term, in which he denied that he had any trouble with Ferguson on the night of the homicide; but stated that he and his companion, on leaving the saloon, left Ferguson there. In his testimony upon the trial, the defendant also denied that he had any difficulty with Ferguson on the night in question, or that he had any knife then; but stated that he had a difficulty with two strangers, one of whom struck him in the face with a lantern, and the other had knocked him down, or had struck him twice and he fell down. He also stated that he and Ferguson were on the most friendly terms, and that he left the latter at the saloon when he started home.

John S. Blackwell, for appellant. Atty. Gen. Wood, for the State.

SHERWOOD, J., (after stating the facts as above.)

1. The affidavit for a continuance made by the defendant at a former term of the court was properly admitted in evidence, on the authority of State v. Hayes, 78 Mo. 307.

2. There was error in admitting testimony as to what Craft said to Wilson, the marshal, to-wit: "You have got your right man; you don't have to go any further to get him." There are two reasons why the ruling was erroneous: (1) Because the defendant was under arrest, and therefore in no position to make any denial as to what Craft said in his presence. His silence under Craft's remark will not warrant any inference against him. Whart. Crim. Ev. § 680; Com. v. Walker, 13 Allen, 570; U. S. v. Brown, 4 Cranch, C. C. 508; Com. v. Kenney, 12 Metc. 235; Rex v. Appleby, 3 Starkie, 33; Bob v. State, 32 Ala. 560. (2) Because the remark was made by a mere stranger in his presence, and not to him. Com. v. Kenney, supra; Child v. Grace, 2 Car. & P. 193; Moore v. Smith, 14 Serg. & R. 388; 1 Greenl. Ev. (14th Ed.) § 199; Melen v. Andrews, Moody & M. 336; Com. v. McDermott, 123 Mass. 440. The defendant had the right, therefore, to treat the remark of Craft as mere impertinence, and best answered by silence. See, also, State v. Walker, 78 Mo. 388; State v. Glahn, 97 Mo. 694, 11 S. W. Rep. 260; State v. Hamilton, 55 Mo. 522. It is unnecessary to decide whether the error in this regard, if it stood alone, would constitute ground for a reversal, but it has been deemed necessary to point it out.

3. The instructions given by the court, at the instance of the state, limited the jury to finding the defendant guilty of murder in the first degree, if found guilty at all. On the part of the defendant an instruction was given as to self-defense, as to which it is unnecessary to say anything, as the defendant is not complaining of that, nor could he do so after having asked it. But he complains, and justly complains, of the failure of the court to instruct the jury as to the lower grades of homicide. The admissions made by the defendant to Wilson, the prosecuting attorney, and that made to the coroner, certainly...