The State v. Evans
| Decision Date | 27 November 1900 |
| Citation | 59 S.W. 994,158 Mo. 589 |
| Parties | THE STATE v. EVANS, Appellant |
| Court | Missouri Supreme Court |
Appeal from Dunklin County Court. -- Hon. J. L. Fort, Judge.
Reversed and Remanded.
Tribble & Hall for appellant.
(1) The indictment is fatally defective. It does not charge that defendant assaulted deceased with a pistol or with anything else. State v. Furgerson, 152 Mo. 92. It does not conclude "and so the grand jurors aforesaid," but simply says, "and so the jurors aforesaid," and for this reason is fatally defective. State v Furgerson, 152 Mo. 92; State v. Meyers, 99 Mo 107; State v. Stacy, 103 Mo. 11. The omission of the word "grand" before the word "jurors" is equivalent to an omission of the entire averment. State v. Furgerson, 152 Mo. 92 (98); State v. Meyers, 99 Mo. 107; State v. Stacy, 103 Mo. 11; State v Pemberton, 30 Mo. 376. (2) It was error for the court to permit the witness Henry Lane to testify as to the rumors that he had heard regarding the supposed immoral relation between defendant and the wife of deceased. He had offered proof of his character as a peaceable, quiet, moral citizen, and it was not competent to disprove his character by proof of a single specific act of immorality. This would be true even if the inquiries as to his, defendant's, character should extend to his moral character only. Character can not be impeached by proof of particular or single specific acts. It must be general. State v. Welsor, 117 Mo. 570; State v. Bulla, 89 Mo. 595; Patrick v. Steamer, 19 Mo. 73; State v. Reed, 85 Mo. 194; State v. Reavis, 71 Mo. 420; State v. Tabor, 95 Mo. 590; State v. Goetz, 34 Mo. 85. (3) The officer who arrested the defendant was permitted to detail what he said to the defendant while he yet had him in custody; and to state what he, Morgan, said to the defendant regarding his, Morgan's, opinion as to whether or not the defendant had been hit with the club. It was merely his impression and should have been excluded. The club was in evidence before the jury and they should have been permitted to draw their own conclusions. State v. Miller, 44 Mo.App. 159; State v. Gates, 103 Mo. 357; Muff v. Railroad, 22 Mo.App. 584; Madden v. Railroad, 50 Mo.App. 666; Railroad v. Stock Yards Co., 120 Mo. 541.
Edward C. Crow, Attorney-General, for respondent.
The defendant was indicted in the circuit court of Dunklin county in the year 1892 for the murder of Alexander St. Aubin. On his application a change of venue was awarded to Butler county and the cause was dismissed in 1894. At the August term, 1895, he was again indicted in the circuit court of Dunklin county. He was duly arraigned and was finally tried on the 19th day of October, 1899, and convicted of murder in the second degree and sentenced to imprisonment in the penitentiary for ten years.
The indictment is as follows:
The evidence tended to establish the following facts.
Prior to the 13th day of August, 1892, the defendant and deceased lived in the same neighborhood. Deceased was a married man and defendant single. Bad blood had been engendered between them, growing out of some alleged familiarity of defendant with the wife of deceased. On the 4th of July, 1892, a little over a month before the homicide, the defendant had a conversation with William Sparks. It seems that there were two picnics in the neighborhood of Kennett, the county seat, one at the Fair Grounds and the other at Wright's Grove. Sparks and defendant were at the Fair Grounds. About four o'clock in the afternoon defendant came to Sparks and inquired if he had seen Alexander St. Aubin and Teroy. Sparks answered that he had seen Teroy, but St. Aubin had been there, but had left. Thereupon defendant said to Sparks, "Let's go up to the Wright Grove." Sparks assented and they came up into the town of Kennett and stopped in front of Rigg's hardware store. Defendant said, "Wait a minute, I want to go in here," and went into the store and Sparks followed him. Defendant bought some cartridges and came out. They walked on, defendant holding the cartridges in his hand until he reached a livery stable, when he said to Sparks, "Them fools may be up there; if I get into it I am going to make it hot for them."
In the course of his conversation with Sparks defendant said he and St. Aubin were at outs; that he had kissed St. Aubin's wife, and he would kiss her again. "It seemed like that was the cause of the trouble between them."
On August 13, 1892, St. Aubin and his wife went to church at night at a church on what is known locally as Johnson's island. Defendant also went. After the meeting defendant and John King left the church together, and walked down the public road in the direction of defendant's home. When they reached a spot near the residence of Mr. Brower, King and defendant sat down on a log. King stated he was sick. While thus seated the deceased, St. Aubin, and his wife came along, each riding horseback. King, who had hired himself to St. Aubin as a laborer, spoke to St. Aubin as he came to them, and inquired if his horse would "tote double;" that he was sick and wanted to ride home with him. King was not sworn as a witness.
Henry Lane testified in behalf of the State that he was riding home from church that night and had stopped at the forks of the road; that St. Aubin and his wife passed the forks and stopped for some cause. Witness saw St. Aubin get off his horse and heard him talking to some one but could not distinguish the words.
He then heard a lick strike like somebody was striking another. About that time defendant and St. Aubin started to run afoot down the road in the direction of witness, and as they got in front of witness defendant shot St. Aubin. Defendant was in front, and St. Aubin following about three or four feet behind. Defendant fired two shots at St. Aubin. When he fired the first shot St. Aubin said, "Jim, you have killed me," and defendant answered, "If I hain't I can do it," and fired another shot. The first shot struck deceased and penetrated his heart. He groaned once or twice and died. This witness says St. Aubin had nothing in his hands at the time he was shot. He could see both parties distinctly. A dried elm stick was lying about two or three feet from where deceased fell. The stick was about two feet long. Upon cross-examination the witness said he heard defendant say when he heard the first lick, "Don't Alex," or something to that effect. When defendant fired he was about half turned around. St. Aubin was twenty-five or thirty pounds heavier than defendant.
Dr. Rosenthal, the coroner, testified he made a post mortem examination of deceased and found he was shot through the heart. The wound was mortal.
After the shooting defendant said his head was hurt, and asked Brower, one of the witnesses, to feel his head. Witness rubbed his hand over his head, but discovered no knot on his head and no blood. The sheriff Morgan who arrested defendant at the inquest the day after the homicide, testified he had the stick referred to by the witness and was taking it to town with the prisoner, and he remarked to defendant "He hit you with this stick?" Defendant said, "Yes, he did, with both hands," and the sheriff asked, "Where did he hit you?" Defendant showed him on the side of the head. The sheriff testified he looked but couldn't see any sign of a skinned place or bruise, and no bump. The sheriff then said, Defendant answered, "Well, he hit me with it...
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... ... Character and habits can not be proved by specific acts or ... instances. It is well settled in this State and elsewhere ... that the character of a witness may be impeached by general ... evidence of reputation, but not by evidence of particular ... ts. State v. White, 35 Mo. 500; Hawkins v ... Globe Ptg. Co., 10 Mo.App. 174; State v ... Welsor, 117 Mo. 570; State v. Evans, 158 Mo ... 589; Railroad v. Strond, 67 Ark. 112; Totarella ... v. Railroad, 53 A.D. 413. (2) The court erred in ... admitting in evidence ... ...