The State v. Gregory
| Decision Date | 12 November 1900 |
| Citation | 59 S.W. 89,158 Mo. 139 |
| Parties | THE STATE v. GREGORY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Dunklin Circuit Court. -- Hon. J. L. Fort, Judge.
Affirmed.
W. R Hall and J. P. Tribble for appellant.
(1) The court erred in permitting witness Wilson to answer the question in reference to the character of deceased, as follows: "Isn't it true, Mr. Wilson, that Joseph Covert was a splendid good man and so recognized by the best people of that county?" His answer being: "He was by me." This was not the proper manner of establishing good character or of contradicting proof of bad character. Opinions of the witness are not admissible. Waddingham v Hulett, 92 Mo. 528; 1 Greenl. on Evid., sec. 461. (2) It was error for the court to refuse to permit witness Higginbotham to testify to the reputation given deceased Covert, by those with whom he had conversed about it. It was a matter of legitimate inquiry, and each individual witness is not required to testify as to the reputation of a man among all his neighbors. Part may be proved by one and part by others, the combined testimony of all going to establish his general reputation among his neighbors. State v. Brandenburg, 118 Mo. 181; State v. Grate, 68 Mo. 22. (3) Instruction 6 is erroneous (a) It does not give a proper definition of self-defense -- in fact no definition of self-defense at all -- but merely suggests a portion of the negative element of that defense. The court should, in all cases, follow approved precedents in preparing instructions on well settled points. State v. Kilgore, 70 Mo. 557; State v. Murray, 91 Mo. 99. (b) It comments on the testimony; this is forbidden by law. R. S. 1899, sec. 2639; State v. Homes, 17 Mo. 379; State v. Dunn, 18 Mo. 419; State v. Sivils, 105 Mo. 530; State v. Fairlamb, 121 Mo. 137. And the fact that the comment may have been correct does not cure it of its vice. Jones v. Jones, 57 Mo. 139; Miller v. Marks, 20 Mo.App. 369. (c) Besides it declares an incorrect proposition of law. The defendant has a right to act on appearances. This was here denied him. (4) It is self-contradictory in telling the jury if they "believed defendant guilty of either murder in the first or second degree, and entertained a doubt as to which of said degrees defendant was guilty, they would give him the benefit of such doubt and find him guilty of murder in the second degree." State v. Grayor, 89 Mo. 600. Such instruction is prejudicial to the defendant and unauthorized by law. State v. Martin, 124 Mo. 522.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
Wilson was not the State's witness; he was not put upon the stand for the purpose of establishing the good character of the deceased; he was not being examined upon matters which he had not been previously examined upon in chief, and the State was not primarily attempting to prove by him that deceased was a man of good character. The questions propounded to him on cross-examination were asked for the purpose of discovering and disclosing the extent of the witness's knowledge of the general reputation of the deceased in the neighborhood in which he lived. Nor can it be said that the question was for the purpose of contradicting proof of bad character, but was asked for the purpose of discrediting the testimony of the witness and enabling the jury to determine the exact weight that should be given his testimony. Nor was the question such as would call from the witness his opinion of the character of deceased. It went solely to the general reputation which the deceased had in the community in which he lived, so far as being a splendid, good man was concerned. The words "splendid, good man" necessarily include his reputation as a peaceable and law abiding citizen, and was, in every particular, a competent question on cross-examination. Character, as used in the law and evidence, is the opinion generally entertained of a person, derived from the common report of the people who are acquainted with him. Bouvier's Law Dictionary, 300; State v. Smith, 88 Ala. 73; State v. Turner, 36 S.C. 534.
From a conviction of murder in the first degree, the defendant appeals to this court. The homicide occurred in Dunklin county, Missouri, in which both deceased and defendant resided at the time.
Joseph Covert, the deceased, was a member of the firm of Covert & Hill, who were in the lumber business, and owned in his own right a small store near the mill yard. The defendant is a married man, about 24 years old. Some days prior to the killing of deceased by defendant, the defendant had contracted to cut some logs for deceased and had purchased a few articles from deceased, and not having the money, pledged a silverine watch, valued at $ 3, as security for the goods he purchased. On the 20th of February, 1899, the defendant, his younger brother and his father were hunting in the neighborhood of the store, when the defendant and his brother left their father and came over to the mill. The defendant carried his Winchester rifle with him and when he reached the mill, went into the engine or boiler room and inquired of Ferrell, one of the workmen, where his watch was. Ferrell told him it was hanging upon the post where the fireman was. Thereupon defendant said, "I am going to get that watch, and if Mr. Covert kicks I aim to shoot him like shooting a G -- d d -- n rabbit."
Defendant went in, got the watch, and put it in his pocket. He then started to the store, but before reaching it, overtook Mr. Covert, the deceased, who went to the store with him. John Wortham, one of the hands, saw defendant take the watch and went over to the store to tell Covert. When he got there, Covert was busy, and witness asked defendant if that was his watch sure enough, defendant said it was, and pulled it out of his pocket, whereupon deceased remarked, "You had better let it alone until this is settled." The evidence of several witnesses tended to show that when defendant and deceased went into the store, the deceased, Covert, got the account book. The amount of the account was shown by defendant to be $ 1.35, and that upon the settlement deceased owed him 11 cents, but deceased wanted to hold the watch until a wedge valued at 35 cents had been paid for. Defendant contended that this was not a part of the goods for which the watch was pawned. About the time the statement of the account was handed deceased by defendant, one George Moran came into the store and called for some chewing tobacco. Covert waited on him, and walked along the counter to the end when he turned, and this brought him facing defendant and some others who were in the store, and about eight feet from defendant. Defendant then said to Covert, "If you don't stop, I will shoot you." Covert said, "No, you won't," and about that time Covert stopped and defendant shot him. The deceased fell with his head at the door and his feet toward the counter. There was evidence also that deceased was in a good humor and was making no demonstration against defendant when he was shot.
Breeden testified that about two weeks prior to the homicide, Gregory, the defendant, said he was going to cut logs for two days and then demand his watch, and if he didn't get it he was going to shoot Covert.
Harry Schick testified that he asked Gregory on the day of and before the homicide, why he was not cutting logs, and defendant answered, he didn't intend to cut any for a while, but he intended to have his watch or beat Covert up.
McIntosh testified that after the shooting he saw Covert lying in the door, and defendant with his gun in his hand. Some one remarked to defendant it was a bad piece of business and defendant said,
Ed Wilkes testified to a similar statement.
Dr. A. S. Harrison, the coroner, testified that he held a postmortem examination on the body of Joseph Covert, the deceased, and found a gun shot wound on the right side of the neck, passing backward, striking the spinal column in the region of the neck, fracturing some of the spinal vertebrae, passing downward and striking the shoulder blade, and glancing from there, striking the spinal column again and lodging under the skin near the spinal column on the right side. That it was a mortal wound sufficient to produce instant death.
On the part of defendant, his wife and Elizabeth Black testified that on one occasion deceased was passing the home of defendant's father and stopped to get a drink of water at the well near the road, and Mrs. Gregory, wife of defendant, was drawing water for herself; that defendant got his drink and then commenced talking to her. He said he was going up to where he was raised, and wanted her to go with him. She told him "No, sir; she couldn't go." He then said he liked her better than any woman he ever saw, and he intended to have her if he had to kill Milo. These witnesses both swear they never told defendant of this conversation, nor mentioned it to any one until after the homicide.
J. O Wilson testified on his direct examination that he knew the general reputation of deceased for peace and quietude, and it was bad. This witness was cross-examined as to the persons who had given deceased a bad reputation for quietude and peace, and he named three who...
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