The State v. Cochran
| Decision Date | 07 February 1899 |
| Citation | 49 S.W. 558,147 Mo. 504 |
| Parties | The State v. Cochran, Appellant |
| Court | Missouri Supreme Court |
Appeal from Harrison Circuit Court. -- Hon. P. C. Stepp, Judge.
Affirmed.
Sallee & Crossan and J. C. Wilson for appellant.
(1) The court committed a manifest error in overruling defendant's application for a continuance. It will be conceded that in its formal parts the application was sufficient, and it only remains to be considered whether proper diligence had been used, and whether the testimony of the absent witness as set out in the application was material. (2) To cite authorities to show the materiality of this evidence would seem to be unnecessary, for they are almost innumerable. State v. Sloan, 47 Mo. 604; State v. Keene, 50 Mo. 357; State v Elkins, 63 Mo. 159; State v. Eaton, 75 Mo. 586; State v. Harrod, 102 Mo. 590. (3) If under all the circumstances the continuance should have been granted, it is ground for the reversal of the judgment. State v Tatlow, 136 Mo. 682; State v. Maddox, 117 Mo 667; State v. Anderson, 96 Mo. 241; State v. Warden, 94 Mo. 648. In the case at bar the discretion of the court was oppressively exercised. So far as is disclosed by the record, this was defendant's first application for a postponement of the trial, and no disposition was shown to unreasonably delay the trial of the case. The application was filed on the eleventh day of April, 1898, at the adjourned term held on that date. This court will take judicial notice of the general law which provides that a regular term of the Harrison circuit court shall be held on the second Monday in May. (4) When the witness Briant denied making the statement to Champlain attributed to him there thus ended the matter. The defendant had not introduced such a part of a conversation as entitled the State to the remainder of it, and the witness' statement as to what he told Champlain was the purest hearsay and the court committed error in permitting it to be introduced. (5) The court committed error in permitting the witness Bain upon his direct examination by the State to testify that defendant told him on their way home from Ridgeway that he would kill somebody before the week was out, and particularly "that he would like to kill some damned old Grand Army man." The first threat if made was not directed against anyone in particular, and had no tendency to show the state of defendant's feelings toward the deceased. Its natural effect was to prejudice the jury against the defendant by showing him to be a man generally regardless of human life. State v. Goetz, 34 Mo. 85; State v. Daubert, 42 Mo. 242; State v. Crabtree, 111 Mo. 136; State v. Grant, 79 Mo. 137. (6) The court erred in refusing his request that the court instruct the jury upon the subject of murder in the second degree, and on manslaughter in the second and fourth degrees, and upon imperfect self-defense. State v. Foster, 61 Mo. 549; State v. Fairlamb, 121 Mo. 137; State v. Holmes, 54 Mo. 153; State v. Frazier, 137 Mo. 317. The evidence in this case shows that the defendant entertained hostile feelings toward the deceased on account of the alleged mistreatment by deceased of defendant's aunt. The court, by its course in refusing any instructions for a lower grade of offense than murder in the first degree, in effect told the jury to disregard all evidence of palliating circumstances testified to by defendant. The question as to the state of defendant's mind caused by his injuries received in the combat with Stanbrough should have been submitted to the jury. State v. Holme, 54 Mo. 153; State v. Foster, 61 Mo. 549; State v. Hill, 69 Mo. 451; State v. Ellis, 74 Mo. 207; State v. Lewis, 74 Mo. 222; State v. Wilson, 98 Mo. 440; State v. Woods, 97 Mo. 31; State v. Swanagan, 109 Mo. 233; State v. Crawford, 115 Mo. 620; State v. Lewis, 118 Mo. 79; State v. Fairlamb, 121 Mo. 137; State v. Frazier, 137 Mo. 317; State v. Hudson, 59 Mo. 135; State v. Hardy, 95 Mo. 455; State v. Ramsay, 82 Mo. 138; State v. Jones, 79 Mo. 441. (7) The defendant testified, and he had the right to instructions based upon his own testimony, that he went to Briant's place for the sole purpose of chastising deceased with a buggy whip, because he had whipped his wife with a blacksnake whip. This purpose was unlawful, but not felonious, for an ordinary whip such as described by witness Bain is not a deadly or dangerous weapon. Having voluntarily entered the difficulty for an unlawful purpose, he could not be completely exonerated when his peril became imminent, but his shooting under these circumstances constituted an offense less than murder in the first degree. State v. Partlow, 90 Mo. 608; State v. Berkley, 92 Mo. 53; State v. Davidson, 95 Mo. 158; State v. Gilmore, 95 Mo. 554; State v. Parker, 96 Mo. 382; State v. Stiltz, 97 Mo. 25; State v. Herrell, 97 Mo. 110; State v. Hicks, 92 Mo. 438. (8) Defendant should have had his theory of the case as shown by his own testimony fully and fairly submitted to the jury, as per his written request, and the failure of the court to do so is reversible error. State v. Brown, 104 Mo. 372; State v. Banks, 73 Mo. 592; State v. Palmer, 88 Mo. 568; State v. Partlow, 90 Mo. 608; State v. Young, 99 Mo. 666. These instructions can only be denied where the physical facts and the uncontroverted acts of defendant conclusively contradict his testimony. State v. Talmage, 107 Mo. 543. The jury should have been instructed as to manslaughter in the fourth degree. State v. Stiltz, 97 Mo. 25; State v. Cable, 117 Mo. 380.
Edward C. Crow, Attorney-General, J. W. Perry and E. H. Frisby, for the State.
(1) No error was committed in overruling the application for continuance for these reasons: First. It discloses no diligence. State v. Whitton, 68 Mo. 91; Blair v. Railroad, 89 Mo. 383; State v. Emery, 12 Mo.App. 583; State v. Pagels, 92 Mo. 308; State v. Inks, 135 Mo. 678; State v. Good, 132 Mo. 114; State v. Banks, 118 Mo. 117; State v. Riney, 137 Mo. 102. Second. The application shows upon its face that the failure to have a subpoena issued for the witness resulted from the mistake or negligence of the defendant or his counsel. In either event the courts will not relieve against such mistake or negligence. Gehrke v. Jod, 59 Mo. 522; Bubinger v. Taylor, 64 Mo. 63; State v. Dreher, 137 Mo. 11. Third. The application failed to show the relevancy or materiality of the alleged evidence of the absent witness, because it failed to state that the defendant expected to rely upon the defense of self-defense, upon which ground only the alleged threats would be admissible. State v. Pagels, 92 Mo. 300; State v. Howell, 117 Mo. 307; 1 Bish., Crim. Proc., sec. 951a; State v. Mitchell, 98 Mo. 657. (2) Upon no possible theory could the evidence that deceased had whipped his wife four or five weeks before the homicide, or that defendant had been informed that such was the fact, be admissible upon his trial, for wantonly and wickedly attacking an unarmed man. It could neither excuse nor palliate the offense disclosed by this record. State v. Anderson, 98 Mo. 461; State v. Bulling, 105 Mo. 204. (3) The evidence of David Bain that defendant said, within an hour of the homicide, that he intended to kill someone before the end of the week, and also that he intended to kill some damned old Grand Army man, was entirely competent. General threats are always admissible on the trial of one charged with murder. State v. Fitzgerald, 130 Mo. 407; State v. Harlan, 130 Mo. 381; State v. Guy, 69 Mo. 430. (4) The court did not err in refusing to instruct on any lower degree of homicide than murder in the first degree. The evidence for the State discloses a most cowardly murder, accompanied by circumstances of great brutality and atrocity. Under the circumstances shown in evidence, the defendant was not entitled to any instructions for a lower grade than murder in the first degree. State v. Inks, 135 Mo. 678; State v. Williams, 141 Mo. 316; State v. Pollard, 139 Mo. 220; State v. Brown, 119 Mo. 527; State v. Sneed, 91 Mo. 552; State v. Reed, 117 Mo. 604; State v. Smith, 114 Mo. 421; State v. Umble, 115 Mo. 464. (5) No error was committed in refusing to instruct on manslaughter in the fourth degree, on the theory that defendant might have entered into the combat at the wagon near the barn without felonious intent. The deceased was not shot and killed in that combat. It was a half hour or longer since it had ceased, and they had made friends and shaken hands and gone to the house to wash away its stains in apparent good fellowship. The killing did not occur "during the progress of that difficulty brought on by the defendant."
The defendant was indicted on the fourth day of October, 1897, for having on the seventeenth day of August, 1897, at the county of Harrison, shot, killed and murdered one George Stanbrough. He was convicted of murder in the first degree, and his punishment fixed at death. He appeals.
The indictment was found in the Harrison circuit court, at its October term, 1897. At that term the case was continued until the January term, 1898, when the court was adjourned until the eleventh day of April next following, and the case set down for the trial at that time.
When the case was called for trial defendant applied for a continuance alleging as grounds therefor the absence of one Simeon Richardson, a resident of Harrison county, but who was then temporarily absent from the State. That he had first learned of the absence of this witness on the day of making his application; that when he gave the list of witnesses to his counsel, he designated this witness as Scott Richardson's largest boy, and that his attorneys by mistake caused a...
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