The State v. Finley

• Court: Missouri Supreme Court
• Writing for the Court: BROWN, P. J.
• Citation: The State v. Finley, 150 S.W. 1051, 245 Mo. 465 (Mo. 1912)
• Decision Date: 13 November 1912
• Parties: THE STATE v. J. J. FINLEY, Appellant

150 S.W. 1051

245 Mo. 465

THE STATE v. J. J. FINLEY, Appellant

Supreme Court of Missouri, Second Division

November 13, 1912

Appeal from Pemiscot Circuit Court. -- Hon. W. S. C. Walker, Judge.

Affirmed.

Ward & Collins for appellant.

(1) Grievous errors were committed in the admission of incompetent, irrelevant and immaterial testimony over the objections and exceptions of the defendant in the trial, and in the leading and improper manner in which it was elicited from the State's witnesses. The appellant's conviction was brought about by incompetent testimony in answer to questions most flagrantly leading. State v Whalen, 148 Mo. 286; State v. Keath, 53 Mo.App 383; State v. Napper, 141 Mo. 401. (2) The plat or diagram, although not shown by any witness to be correct but, on the contrary, was shown to have been incorrect, was admitted in evidence over the appellant's objections and exceptions and stood before the jury, although a silent, yet a volume-speaking witness of untruths and inaccuracies against the appellant. State v. Bidstrupp, 237 Mo. 283; Underhill on Crim. Ev. (2 Ed.), Sec. 52; 17 Cyc. 412; 4 Ency. Ev. 641. (3) Appellant should have been permitted to show that deceased while under the sense of impending death stated the facts relating to the killing and the circumstances attending it. State v. Craig, 190 Mo. 332; State v. Kelleher, 201 Mo. 614; State v. Nocton, 121 Mo. 550; 1 Greenleaf on Ev. (14 Ed.), Sec. 158; 3 Russell on Crimes (9 Am. Ed.), 250; 6 Am. & Eng. Ency. Law, 108; House v. State, 21 L. R. A. (N. S.) 840; State v. Doris, 10 L. R. A. (N. S.) 660; Worthington v. State, 92 Md. 222; Worthington v. State, 56 L. R. A. (N. S.) 353; State v. Draper, 65 Mo. 335. (4) It was the duty of the trial court when objection was made to the remark of the assisting counsel for the State to rule on such objection, and its failure to do so is reversible error in this case. Morrison v. Turnbaugh, 192 Mo. 427; State v. Spivey, 191 Mo. 87; State v. Woodward, 191 Mo. 619. (5) Had appellant's violent passion been produced by any lawful provocation he would have been guilty of no greater offense than manslaughter. The instruction is further erroneous because the court used the words "violent passion" and did not in this or in any other instruction define the meaning of these words. The failure in instructions to explain the meaning of such expressions as "violent passion," "in heat of passion," "upon sudden provocation," and like expressions is erroneous. State v. Reed, 154 Mo. 122; State v. Strong, 153 Mo. 548; State v. McKensie, 102 Mo. 620; State v. Andrews, 76 Mo. 101; State v. Skaggs, 159 Mo. 581. This instruction is erroneous for the further reason that every eyewitness to this homicide stated that deceased was either in a striking attitude or did strike appellant before appellant used his knife. Hence there was no evidence upon which to predicate an instruction that appellant used his knife in a "violent passion suddenly aroused by insulting and abusive language." In this instruction the trial court singled out only a part of the conduct of the deceased which may have tended to produce "violent passion" on the part of the appellant. State v. Hibler, 149 Mo. 478; State v. Rutherford, 152 Mo. 124. (6) The evidence in support of the prosecution was not offered by the prosecuting attorney, but by assistant counsel for the State. The accused has the right to look to the prosecuting attorney, who acts under his official oath, to safeguard his rights and to have no advantage taken of him. Sec. 5231, R. S. 1909.

Elliott W. Major, Attorney-General, and Charles G. Revelle, Assistant Attorney-General, for the State.

(1) Objections are made that the State was permitted to ask certain leading and suggestive questions, but it is now a well-settled rule in this State that whether this should or should not be done rests in the sound discretion of the trial court, and a judgment will not be reversed upon that ground unless it affirmatively appears that the discretion has been unwisely and arbitrarily exercised. It nowhere appears in this record that the court abused its discretion in this respect. State v. Whalen, 148 Mo. 290; State v. Woodward, 191 Mo. 617; State v. Bateman, 198 Mo. 212. (2) To render dying declarations admissible it must appear that the party, when making them, believed that his dissolution was near at hand, and that he had abandoned all hope of recovery. The declaration must not only be made by the declarant under a sense of the actual nearness of death, but there must be an absolute conviction of it in his mind. It is not enough that he should have thought he would ultimately never recover, but the declaration must have been made under an impression of almost immediate dissolution. State v. Johnson, 118 Mo. 501; State v. Simon, 50 Mo. 373; State v. Partlow, 90 Mo. 629; State v. Horn, 204 Mo. 547; State v. Parker, 172 Mo. 202. Appellant at no time indicated or placed in the record anything tending to show the statement or character of the statement which he sought to elicit, and this court is therefore unable to determine whether such statement was competent or material. The rejection of testimony is not open for review if the defendant, at the time of the exclusion of such evidence, made no offer of proof and no statement of what he expected to prove, but simply saved his exceptions. State v. Foister, 202 Mo. 48; State v. Arnold, 206 Mo. 597; State v. Page, 212 Mo. 238; State v. Martin, 124 Mo. 514; State v. Hodges, 144 Mo. 50. This court cannot declare from the record, that the statements which appellant sought to elicit would have been favorable to or in aid of his defense, or that such statements related to the act or circumstances of the killing. Dying declarations, to be admissible, must be restricted to the identification of the accused, the act of killing, the circumstances immediately attending it, and all those matters which form a part of the res gestae, but as to all matters occurring anterior or subsequent to the killing, and not immediately connected with it, same are inadmissible. State v. Draper, 65 Mo. 335; State v. Vansant, 80 Mo. 67; State v. Chambers, 87 Mo. 406; State v. Parker, 96 Mo. 382; State v. Welsor, 117 Mo. 570; State v. Horn, 204 Mo. 547; State v. Kelleher, 201 Mo. 632; Sec. 5115, R. S. 1909; State v. Lett, 85 Mo. 52. The statements, "That Jade [appellant] was not to blame," and "he said he brought it on himself," were wholly inadmissible as dying declarations because they gave merely the conclusions of a party not to the record, unaccompanied by the facts. State v. Elkins, 101 Mo. 344; State v. Evans, 124 Mo. 397; State v. Horn, 204 Mo. 548; State v. Kelleher, 201 Mo. 614; State v. Welsor, 117 Mo. 570; State v. Chambers, 87 Mo. 406; State v. Parker, 96 Mo. 382. (3) Appellant saved no exception to remarks nor to the failure of the court to reprimand the State's counsel. State v. Chenault, 212 Mo. 137; Champaign v. Hamey, 189 Mo. 709; State v. Valley, 196 Mo. 29; State v. McCarver, 194 Mo. 717. (4) Appellant was not convicted of second degree murder, but of fourth degree manslaughter, and, under such conditions, he cannot complain of any error in an instruction on second degree murder. State v. Haynes, 160 Mo. 567; State v. Evans, 158 Mo. 605; State v. Eaton, 75 Mo. 591; State v. Sansone, 116 Mo. 1; State v. Alfrey, 124 Mo. 393; State v. Darling, 199 Mo. 202; State v. Waters, 144 Mo. 341. (5) If it were necessary to define the term "violent passion" at all, we submit that same was sufficiently defined by the instruction in which the term is used. It substantially told the jury that a "violent passion" was one "suddenly aroused by insulting or abusive language." State v. Kinder, 184 Mo. 297; State v. Rose, 142 Mo. 429. A failure to in any manner define such terms, if error at all, is error in favor of the defendant. State v. Sharp, 233 Mo. 289.

BROWN, P. J. Ferriss and Kennish, JJ., concur.

OPINION

BROWN, P. J.

Tried in the circuit court of Pemiscot county on a charge of murdering his father-in-law, M. B. Holt, on August 4, 1909, defendant was convicted of the crime of manslaughter in the fourth degree, and appeals.

Both parties resided in the village of Cottonwood Point in Pemiscot county, and were owners of ferries on the Mississippi river. A fierce rivalry in the ferry business seems to have indirectly brought about the difficulty which resulted in the tragedy. Defendant established his ferry near one long owned and operated by his father-in-law, the deceased. This displeased deceased very much, and he made many threats against defendant, to the effect that he was going to stop defendant from running a ferry if he had to use rough means to do so. Some of these threats were communicated to the defendant before the killing took place.

It appears that the fare for a round trip across the river at Cottonwood Point was $ 3.50. On the morning of August 4 1909, defendant offered to ferry a man and wagon for seventy-five cents; whereupon deceased offered to ferry him for less. The bidding continued until deceased cut the price to forty cents. Deceased then walked up on the porch of a near-by drug store and sat down. Defendant started up the street with the apparent intention of passing the drug store. Deceased, who was in an angry mood, said to defendant, in the presence of several persons, "You lived in my house a year and paid no rent." To this, defendant replied, "Come up to James's store" [a few steps distant], "and I will show you that you received credit for every penny of the rent." Deceased replied, "My wife stole grub for my table last year to feed your family during six months you were loafing." This seemed to anger defendant very much. He called deceased a liar, and...