The State v. Kennedy
| Citation | 106 S.W. 57,207 Mo. 528 |
| Parties | THE STATE v. DAVID KENNEDY, Appellant |
| Decision Date | 10 December 1907 |
| Court | United States State Supreme Court of Missouri |
Appeal from Greene Criminal Court. -- Hon. John T. Moore, Special Judge.
Affirmed.
Gorman Sherwood & Delaney for appellant.
(1) The theory of the defense in this case was that the killing of the deceased was of no graver grade of crime than manslaughter in the fourth degree. The testimony tended to show that the woman, Eva Parks, was the common law wife of the defendant Dave Kennedy; that there had been an agreement between them to live together as man and wife, followed by cohabitation and a holding out to the community that they were man and wife, and that both parties, being unmarried and of age, were capable of thus contracting a marriage. A marriage at common law requires no particular form or ceremony to make it valid. State v. Cooper, 103 Mo 266. It is valid though not in accordance with statute. State v. Bittick, 103 Mo. 183; State v Hainsbrough, 181 Mo. 348; State v. St. John, 94 Mo.App. 229. It is presumed from acknowledgment, cohabitation and reputation. Cargile v. Wood, 63 Mo. 501; Dyer v. Brannock, 66 Mo. 391; White v. Maxey, 63 Mo. 552; Imboden v. Trust Co., 111 Mo.App. 220. (2) The admission of the plea of adultery by Eva Parks with defendant in rebuttal of the theory of a common law marriage between Eva Parks and defendant is incompetent, irrelevant and immaterial and should not have been allowed for such purpose. It is only admissible for the purpose of affecting her credibility as a witness and should be properly instructed upon. R. S. 1899, sec. 4680; State v. Matthews, 20 Mo. 55; State v. Nelson, 118 Mo. 124. The plea itself was improper and should not have been admitted. It was impossible for Eva Parks to commit adultery with defendant as neither had been married to another person. And in addition said Eva Parks was ignorant of the offense she plead guilty to and the punishment assessed by the justice of $ 1 is one not to be found in the statutes. R. S. 1899, sec. 2175; State v. Crowner, 56 Mo. 147; State v. Coffey, 39 Mo.App. 56; State v. Bell, 194 Mo. 359. (3) The testimony showed further that on the evening prior to the killing the deceased had gone to defendant's tent home in the absence of defendant and forcibly had intercourse with the woman. That he had threatened her if she informed on him and threatened to kill defendant if he dared to resent the injury. That the following morning, on being accosted by defendant in regard to the outrage, deceased admitted the fact and was in the act of flaunting it in defendant's face at the time of the killing. These facts entitled him to an instruction on manslaughter in the fourth degree. State v. Grugen, 147 Mo. 39; State v. Calloway, 154 Mo. 92; State v. Privitt, 175 Mo. 207; State v. Gartrell, 171 Mo. 522. Where the evidence shows that the killing was done in hot blood, aroused by the adultery or rape of a wife, without sufficient time having intervened between the discovery of the outrage and the killing for reason to have become cooled, a homicide under such circumstances is only manslaughter in the fourth degree. (4) The exclusion of the testimony of Eva Parks, offered by the defense, of the threat of deceased against defendant to explain the possession of the pistol, was error. It gave the appearance of preparation for the commission of a crime, and unexplained was highly prejudicial to defendant's case. Proof of a threat against a defendant is always admissible. State v. Elkins, 63 Mo. 159; State v. Evans, 50 Mo. 574; State v. Keene, 50 Mo. 357; State v. Adams, 76 Mo. 355. The case of State v. Clum, 90 Mo. 482, and others following it are not applicable to the one at bar. And even in the light of their holding, in this case there was a demonstration as well as a challenge to fight preceding the shooting. Proof of the possession by defendant of a pistol and of putting it in shooting condition followed by a refusal to allow defendant to show his reason (a threat communicated) is most prejudicial and it is error to exclude such threat after proof of possession of pistol. R. S. 1899, sec. 1863. (5) The admission of statements of a third party made in the absence of defendant and not a part of the res gestae is hearsay testimony and fatally erroneous. Chouteau v. Searcy, 8 Mo. 733; Coble v. McDaniel, 33 Mo. 363; State v. McGuire, 113 Mo. 679; State v. Foley, 130 Mo. 484; State v. Grote, 109 Mo. 345. Such testimony is no part of the res gestae. Ladd v. Couzins, 35 Mo. 513; State v. Rider, 95 Mo. 474; State v. Beard, 126 Mo. 548; State v. Brown, 64 Mo. 367.
Herbert S. Hadley, Attorney-General, and John Kennish, Assistant Attorney-General, for the State.
(1) The contention of the defendant at the trial and now is that he was entitled to prove a common law marriage between himself and the Parks woman, for the purpose of showing provocation by the deceased and thus reducing the grade of the homicide, and that the error of the court, in excluding evidence and failing to instruct as to such marriage, was confined solely to the effect of such ruling upon the degree of the defendant's guilt. Upon this point defendant places much reliance on the case of State v. Grugen, 147 Mo. 39. This case, so far as it has been understood as announcing the doctrine that words alone, without personal violence, might be of sufficient provocation to reduce the homicide from murder to manslaughter, is no longer followed in this State. State v. Gordon, 191 Mo. 125; 1 East's Pleas of the Crown, 233; 4 Blackstone, Com., 201; State v. Wieners, 66 Mo. 13. And the common law rule in this respect is firmly established in this State by a long line of decisions. State v. Starr, 38 Mo. 271; State v. Branstetter, 65 Mo. 149; State v. Hill, 69 Mo. 451; State v. Elliott, 98 Mo. 150; State v. Gartrell, 171 Mo. 516-519. As there was no evidence, even by the defendant himself, tending to prove personal violence by the deceased toward defendant, it follows that there was no basis for an instruction on manslaughter in the fourth degree. (2) The court did not err in admitting in evidence the record showing that witness Eva Parks had entered a plea of guilty to a charge of adultery. She was a witness for the defense, and it was therefore competent for the State to impeach her by the record showing that she had pleaded guilty to a criminal offense. R. S. 1899, sec. 4680; State v. Barrington, 198 Mo. 23; State v. Blitz, 171 Mo. 530; State v. Thornhill, 174 Mo. 364. Besides, no objection was made at the time to the introduction of such record in evidence, and therefore it is too late now to complain. (3) The court did not err in excluding evidence tending to prove threats made by deceased against defendant and communicated to defendant before the homicide. There is no evidence in the record tending to prove that deceased was the aggressor, or that he made any attempt to carry out prior threats, if such threats were made, and the law is well settled that evidence of threats by the deceased against the defendant are inadmissible for any purpose, unless the deceased was attempting to put them into execution at the time of the homicide. State v. Smith, 164 Mo. 687; State v. Clum, 90 Mo. 482; State v. Reed, 137 Mo. 125; State v. Privitt, 175 Mo. 207.
At the July term, 1906, of the criminal court of Greene county, the prosecuting attorney of said county filed an information in open court charging the defendant, David Kennedy, with murder in the first degree of Walter Williams at said county, August 2, 1905. The defendant being without means to employ counsel to conduct his defense, such counsel was assigned him by the court. Several dilatory pleas were filed by the defendant and overruled by the court, of which ruling but one, namely, the action of the court in overruling his motion to quash the panel of the petit jury, was preserved in the motion for a new trial, and therefore is now before this court for review. A change of venue from the regular judge on the ground of the prejudice of the judge was granted, and Judge Moore of the Thirty-first Judicial Circuit was requested to and did preside at the trial of the cause. The defendant was duly arraigned, tried and convicted of murder in the second degree, and his punishment assessed at fifty years imprisonment in the state penitentiary. A motion for new trial was filed in due time and being overruled and exceptions saved sentence was pronounced in accordance with the verdict. After judgment had been rendered and sentence passed, a motion in arrest of judgment was filed, overruled by the court, and exceptions saved to such ruling. The defendant has appealed to this court.
On the part of the State the evidence tended to prove that the defendant, David Kennedy commonly known as "Yank," was an unmarried negro laborer, and at the time of the homicide, was working at Root Brothers' camp, about four miles southwest of the city of Springfield, in Greene county. Root Brothers' camp was a railroad construction camp at which the laborers lived in tents. The defendant had worked at said camp a greater part of the year, and for some time before the homicide had occupied a tent with an unmarried negro woman named Eva Parks. Walter Williams, the deceased, lived at the Root Brothers' camp and had been employed there as a teamster, and had known the defendant for several months before the date of the homicide. In the forenoon of the day of the homicide, the defendant did not work and was heard in his tent engaged in an altercation with the Parks woman. The witness Ray Williams went to the tent and saw the defendant oiling a revolver. The defendant stated to the witness that he did...
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