The State v. Hudspeth

• Decision Date: 18 December 1900
• Parties: THE STATE v. HUDSPETH, Appellant
• Court: Missouri Supreme Court

60 S.W. 136

159 Mo. 178

THE STATE v. HUDSPETH, Appellant

Supreme Court of Missouri, Second Division

December 18, 1900

Appeal from Jackson Criminal Court. -- Hon. Samuel Davis, Special Judge.

Reversed and remanded.

B. L Woodson, J. N. Southern, A. N. Adams and Wm. H. Wallace for appellant.

(1) The court erred in permitting the prosecuting attorney on the voir dire examination of a large number of jurors to make inquiries of them touching their competency in a manner unwarranted by law and to defendant's great prejudice. (2) The court erred in not requiring the prosecuting attorney to hand the list of jurors with the State's challenges to defendant's counsel in time for defendant to have a just portion of the twenty-four hours allowed him by law, and by reason of which defendant's counsel had a little less than one hour of the twenty-four in which to make his challenges after the State had made its challenges. R. S 1899, secs. 2623, 2624; State v. May, 142 Mo. 135; State v. Hudspeth, 150 Mo. 12. (3) The court erred in permitting the prosecuting attorney to make a continued assault upon defendant during the cross-examination of the witness Neal Hamilton, to-wit, by insisting in substance that defendant had defrauded justice, that defendant "had himself taken before James Adams and a fake examination made and turned loose" -- by insinuating that defendant's friends manipulated the coroner's jury, thus refreshing the minds of the jury as to the main charges contained in newspaper articles they had read and re-enkindling their prejudice against defendant. (4) The court erred in excluding the testimony of the witness Samuel Way as to the statement or declaration of deceased to Joseph Hudspeth made at the place of the shooting and immediately upon his seeing said Joseph Hudspeth. State v. Hudspeth, 150 Mo. 12; Wharton Cr. Ev. (8 Ed.), secs. 691, 262; 1 Wharton Law of Ev., sec. 259; State v. Sloan, 47 Mo. 604; State v. Martin, 124 Mo. 514; Harriman v. Stowe, 57 Mo. 93; Entwhistle v. Feighner, 60 Mo. 214; Linderberg v. Mining Co., 9 Utah 163; Hunter v State, 40 N. J. Law 495; Keyser v. Railroad, 66 Mich. 390; State v. Horan, 32 Minn. 394; O'Connor v. Railroad, 27 Minn. 166; Jordan v. Commissioners, 25 Gratt. 943; Ins. Co. v Mosley, 8 Wall. 397; Rawson v. Haigh, 2 Bingham 99; Com. v. McPike, 3 Cush. 181; Moore v. State, 20 S.W. 563; Castillo's Case, 19 S.W. 892; Brownell v. Railroad, 47 Mo. 239; Com. v. Werntz, 161 Pa. St. 591; Ins. Co. v. Hillman, 145 U.S. 296; Com. v. Hackett, 2 Allen 136; Crookham v. State, 5 W.Va. 511; Hill's Case, 2 Gratt. 594. (5) The court erred in excluding the offered testimony of the witness Marlowe, that while the difficulty was in progress, and prior to the time as claimed by the State, that deceased withdrew from the same, defendant sent said Marlowe on defendant's horse for a mutual friend to make peace between deceased and himself. Especially was this error in view of the fact that the State's contention at this second trial was that defendant was watching for deceased, with intent to kill him at the time of the shooting, and in view of instruction 13 given for the State, and refused instruction 3 of defendant. 1st. Because it was a part of the res gestae. It is true that on the former appeal we contended this evidence was competent as a part of the res gestae, and this court held it was properly excluded. But the statement of surrounding facts and circumstances at the first trial, as made by this court in its opinion, and the facts and circumstances as developed at the second trial, were materially different. People v. Vernon, 35 Cal. 49. 2d. We raised the point for the first time in the second trial that the sending of Marlowe for Pease was competent evidence for the purpose of rebutting the contention of the State (upon which great stress was laid throughout the second trial), that Hudspeth, at the time of the shooting, was sitting upon a block in front of Vancleave's store, lying in wait for the deceased. Defendant's contention was that he was not lying in wait; that he did not desire to kill deceased, and that he was sitting upon the block with his gun across his lap, waiting until Marlowe should return with his horse and with Mr. Pease. At the time this evidence was offered, the State had already plainly insisted upon its contention to the jury, that Hudspeth was lying in wait for Kessner, and this potent fact, tending to prove the contrary, should not have been excluded. (6) The court erred in permitting the prosecuting attorney, during the closing argument to the jury, to make an attack upon defendant's character, his character not having been put in issue, objection to such attack being overruled, no retraction or explanation being made, the prosecutor being in no manner rebuked or admonished to desist, no qualification being placed upon the prosecutor's remarks and the jury in no way told to disregard or limit them, the court of necessity thus adding its sanction to this attack, and giving the jury to understand that defendant had no right to object to this assault upon his character, and that the prosecutor's course was legal and proper. J. M. McKnight v. United States, 97 F. 208; State v. Lee, 66 Mo. 165; State v. Upham, 38 Me. 261; Fletcher v. State, 49 Ind. 124; Stephens v. State, 20 Tex.App. 255; State v. Dockstader, 42 Ia. 436; Ackley v. People, 9 Barb. (N. Y.) 610; People v. White, 24 Wend. (N. Y.) 520; People v. Evans, 72 Mich. 367; Pollard v. State, 26 S.W. 70; Turner v. State (Texas), 45 S.W. 1020; State v. Woolard, 111 Mo. 248; Haynes v. Town of Trenton, 108 Mo. 123; State v. Furgerson, 152 Mo. 92; Quinn v. People, 123 Ill. 333; Angelo v. People, 96 Ill. 209; State v. Jackson, 95 Mo. 623. (7) The court erred in refusing instruction 8 asked by defendant. State v. Hudspeth, 150 Mo. l. c. 30; 1 Greenleaf Ev., sec. 34; State v. Upham, 38 Me. 261; United States v. Coffin, 156 U.S. 432. Our contention is that we are entitled to the instruction just as we asked it. (8) Neither Judge John W. Wofford nor Judge Samuel Davis had jurisdiction. State v. Sneed, 91 Mo. 552; State v. Hayes, 81 Mo. 574; State v. Hayes, 88 Mo. 344; State v. Shipman, 93 Mo. 147; State v. Higgerson, 110 Mo. 213; State v. Moberly, 121 Mo. 604; State v. Silva, 130 Mo. 440; Dawson v. Dawson, 29 Mo.App. 521; Lacey v. Barrett, 143 Mo. 220; State v. Punshon, 133 Mo. 44; R. S. 1899, secs. 2597, 1679, 2723.

Edward C. Crow, Attorney-General, Sam B. Jeffries, Assistant Attorney-General, Ed. E. Yates, Prosecuting Attorney, and Frank G. Johnson, Assistant Prosecuting Attorney, for the State.

(1) An unbiased review of all the evidence will convince one that the action of two juries in finding the defendant guilty of murder in the second degree was amply justified by the evidence; in fact they were warranted in finding the defendant guilty of murder in the first degree. That just immediately before the shooting took place Kessner and defendant were calling each other names, and deceased was cursing defendant is undisputed; that Kessner assaulted defendant with the weight is disputed. It is only where there is no substantial evidence to support a verdict that the Supreme Court will reverse the action of a trial court on the ground claimed by defendant. State v. Hibler, 149 Mo. 478. (2) The defendant had his list of jurors for more than twenty-four hours before the trial, and he had ample time to make his investigation of the names on the panel. The record does not show any objection made at that time by the defendant, or at any other time to a ruling of the court on this point, and, of course, no exception could be saved. State v. Clark, 147 Mo. 20; State v. Hayes, 81 Mo. 574. (3) The acts and declarations of persons, other than the defendant, to be a part of the res gestae, must be contemporaneous in point of time. People v. Ehring, 65 Cal. 135; Monday v. State, 32 Ga. 672; Hall v. State, 48 Ga. 607; Hall v. State, 132 Ind 317; Hays v. State, 40 Md. 633; People v. O'Brien, 92 Mich. 17; People v. Wong Ark, 96 Cal. 125; State v. Frazier, 1 Houst. Cr. Cas. 176; People v. Dewey, 2 Idaho 79; Shoecraft v. State, 137 Ind. 433; State v. Deuble, 74 Ia. 509; State v. Pomeroy, 25 Kan. 349; State v. Estoup, 39 Ann. 219; Kraner v. State, 61 Miss. 158; Collins v. State, 46 Neb. 37; Estell v. State, 51 N. J. Law 182; Denton v. State, 31 Tenn. 279; Jones v. Com., 86 Va. 740. The defendant's counsel, by a most diligent search, have been able to cull out from the mass of decisions on the subject a few extreme cases in which the circumstances peculiar to each of these cases might have justified the extreme holding in the case. An examination of the cases cited will show either such a dissimilarity between the facts in such cases and the one at bar, or such an extreme holding as to make it unsafe to follow them for the reason that the great mass of authorities are against the contention of defendant. State v. Noeninger, 108 Mo. 172; State v. Curtis, 70 Mo. 597; State v. Snell, 78 Mo. 204. (4) Defendant's next assignment of error is that "the court erred in excluding the testimony of witness Marlowe who was sent by defendant to George Pease for the purpose of getting him to make peace between the defendant and the deceased." Defendant admits that there was no difference in the general facts of the case in the first and second trials. The difference in his offer is in the language and not in the substance. There was no change in the theory of the State on the second trial. The evidence offered would not have strengthened the defense in the least. (5) The honorable judge who presided at the trial, familiar with all the evidence and incidents of the trial, after listening to the argument of defendant's counsel, thought there was nothing improper in the...