The State v. Colvin

• Decision Date: 15 March 1910
• Parties: THE STATE v. JAMES A. COLVIN, Appellant
• Court: Missouri Supreme Court

126 S.W. 448

226 Mo. 446

THE STATE v. JAMES A. COLVIN, Appellant

Supreme Court of Missouri, Second Division

March 15, 1910

Appeal from Clark Circuit Court. -- Hon. Chas. D. Stewart, Judge.

Reversed and remanded.

N. M Pettingill, Whiteside & Rutherford and Perry S. Rader for appellant.

(1) It was error to permit Mrs. Murphy, wife of deceased, to detail a statement made by Murphy as to the facts of the difficulty between him and the defendant. Her testimony of what Murphy said was hearsay, and could have been admissible only on the theory that Murphy's statement was his dying declaration. It was not a dying declaration, and her testimony was not competent on any theory. State v. Johnson, 118 Mo 491; State v. Craig, 190 Mo. 338; State v Brown, 188 Mo. 460; State v. Hendricks, 172 Mo 671; State v. Garth, 164 Mo. 562; State v Stephens, 96 Mo. 637; State v. Chambers, 87 Mo. 406; State v. Mathes, 90 Mo. 571; State v. Simon, 50 Mo. 375. The wrongful admission of this testimony opened the way to the most hurtful occurrence of the entire trial. It opened the way to call out of Mrs. Murphy the statement that defendant had irons in his hands when he struck Murphy. In that statement is to be found an explanation of the verdict in this case. When the court came to instruct the jury it gave instruction 14 asked by defendant, that "all testimony, statements or references to knucks or irons are excluded from the consideration of the jury;" and we frankly admit the court did what it could after it discovered its error in admitting this testimony, to correct the error. But that did not cure the damage done. It has often been held by this court in criminal cases that the admission of improper testimony will not be cured by an instruction for its exclusion. State v. Minor, 193 Mo. 613; State v. Bateman, 198 Mo. 222; State v. Thomas, 99 Mo. 257; State v. Fredericks, 85 Mo. 150; State v. Schneider, 35 Mo. 533; State v. Marshall, 36 Mo. 400; State v. Hopper, 71 Mo. 425; State v. Mix, 15 Mo. 153; State v. Daubert, 42 Mo. 242. This testimony did not incidentally slip into the case. It was not one of those incidents that may occur in any trial where a witness may unexpectedly testify to an improper thing which neither court nor counsel can anticipate. It was skillfully drawn out by counsel, again and again, and several times after it had been ruled out by the court. This case had been tried before. The information did not charge the use of any deadly weapon or weapon of any kind; on the contrary, it charged that defendant made an assault "with his fists." And yet after Mrs. Murphy had closed her recital of what Mr. Murphy said about the res gestae, the State's attorney asked of her the very question that called forth her statement about an iron in defendant's hand. That statement and similar statements by four other witnesses account for the verdict in this case; and whether or not defendant should be awarded a new trial on the sole ground that this damaging testimony was permitted to go to the jury at all, though after a time ruled out by the court, it is a fact that, had the court excluded Mr. Murphy's statement as incompetent as a dying declaration, this damaging statement about irons would never have reached the jury; and therefore it should be held in view by the court in determining the question whether the admission of any part of this socalled dying declaration was error. It is for the court to determine the admissibility of an alleged dying declaration before it is permitted to go to the jury. State v. Sexton, 147 Mo. 90; State v. Simon, 50 Mo. 375; State v. Zorn, 202 Mo. 12. (2) The court erred in permitting John Weaver to detail what Murphy said about the fight. Murphy's statement was not competent as a dying declaration. It should be further noted that this witness didn't understand all that Murphy said, and therefore he was not competent to testify to any part of Murphy's statement. State v. Johnson, 118 Mo. 491. (3) The court erred in permitting John Chasteen to testify as to what Murphy said about the fight. Murphy's statement was not competent as a dying declaration. (4) The court erred in permitting Jasper Kirner, over the objection and exception of defendant, to detail to the jury a statement by Murphy as to how the difficulty occurred. If this testimony is competent, then any witness can testify any and every statement made to him by a deceased at any time prior to his death. (5) The court erred in refusing to permit defendant to show what was Murphy's disposition as to being high-tempered, abusive and turbulent. The competency of such testimony has been established by a long line of cases in this State. State v. Hicks, 27 Mo. 588; State v. Keene, 50 Mo. 357; State v. Bryant, 55 Mo. 75; State v. Feeley, 194 Mo. 300. (6) The court erred in giving instructions on the subject of murder in the second degree. The numerous and elaborate instructions on that subject led the jury to believe that in the mind of the court the defendant was guilty of murder in the second degree. The court thereby prejudiced defendant's rights in the estimation of the jury, and the result was to deny him a fair trial. There was no evidence upon which a verdict for murder in the second degree could have been based. It seems to us impossible to read the testimony of these witnesses and discover any premeditation in the case. There is none from which it can be inferred. Where there is no evidence to authorize an instruction on a particular grade of the offense, no instruction on that grade should be given. State v. Feeley, 194 Mo. 300. Instructions should always be framed with reference to the facts in evidence. Hardister v. Supreme Order, 118 Mo.App. 679. It is for the court to determine what grade or grades of homicide the evidence tends to establish, and it is its duty in instructing the jury to confine itself to such grade or grades. State v. Ellis, 74 Mo. 220; State v. Johnson, 76 Mo. 127; State v. Robinson, 73 Mo. 306. (7) Instruction 5, given for the State, is reversible error. It was the only instruction on manslaughter in the second degree given. a. There was absolutely no evidence that defendant beat Joseph Murphy upon the head, face and body "in a cruel and unusual manner." All the evidence shows that he simply hit him with his fist, and that he hit him only after Murphy had struck him or was trying to strike him with his whip. There was nothing cruel or unusual about that. The fact that he walked home, that the doctor on that day said he did not consider his case serious, that he continued to get better until the doctor began to "freely crowd" strychnine, digitalis and cactus into him, shows that he was not hit in a cruel and unusual manner. In State v. Wilson, 98 Mo. 447, Judge Brace used these words: "In a sense every killing may be said to be cruel, and killings may be said to be unusual, but surely it was not in this sense the Legislature used the terms, for, if so, they add no meaning to the section. It is not difficult to conceive the idea of a killing in the heat of passion that would be cruel or unusual, but within it would never be embraced the instance of one who in a heat of passion in the course of an angry altercation struck a single fatal blow with an ordinary working implement which he had in his hand at the commencement and during the entire progress of the altercation." If the striking of deceased in that case with a hoe could not be said to be a killing of a human being "in a cruel and unusual manner," how can it be said that the striking of Murphy by defendant with his fist was a killing "in a cruel and unusual manner?" In fact, is not the striking of another with one's fist almost the least cruel manner by which one person can kill another? And is it not almost absurd to say the Legislature by using the word "unusual" had in mind the striking of another with one's fist? It should not be overlooked that five of the State's witnesses were permitted to testify that Murphy said defendant used iron knucks in striking him. That evidence ought not to have been admitted at all. With it before the jury they could well have found that defendant struck Murphy in a cruel and unusual manner. If it had not gone to the jury, it is impossible to conceive that they could have found, under the rest of the evidence, that defendant struck Murphy in a cruel and unusual manner. We contend that there was no evidence that shows defendant struck deceased in a cruel and unusual manner, and that it was error to give this instruction 5 for the State. b. It is also erroneous because it omits the words "in a heat of passion" required by the statute. R. S. 1899, sec. 1826; State v. Strong, 153 Mo. 555; State v. Reed, 154 Mo. 122. c. The instruction is also erroneous because it omits the words "without a design to effect death," required by the statute. Without such design there can be no manslaughter in the second degree. R. S. 1899, sec. 1826. The very essence of manslaughter in the second degree is that it must be "without design to effect death" -- that is, the defendant must not have intended to kill deceased. It is what at common law was known as involuntary homicide. This statute, it has been held, does not apply to intentional killing. State v. Edwards, 70 Mo. 482; State v. Curtis, 70 Mo. 600; State v. Gassert, 65 Mo. 352; State v. Wilson, 98 Mo. 447. In 21 Cyc. Law & Prac., p. 1071, it is said "the jury should be instructed as to the essential elements of manslaughter." d. The court erred in not defining the words, "excusable or justifiable homicide" used in this instruction numbered five. State v. Jacobs, 152 Mo. 565. (8) The indictment does not authorize an instruction under section 1826. An indictment for murder in the second degree, a necessary part of...