The State v. Lockett

• Decision Date: 13 May 1902
• Citation: 68 S.W. 563,168 Mo. 480
• Parties: THE STATE v. LOCKETT, Appellant
• Court: Missouri Supreme Court

68 S.W. 563

168 Mo. 480

THE STATE v. LOCKETT, Appellant

Supreme Court of Missouri, Second Division

May 13, 1902

Appeal from St. Louis City Circuit Court. -- Hon. H. D. Wood, Judge.

Reversed and remanded.

H. W Dalton and Joseph S. McIntyre for appellant.

(1) The newly-discovered evidence was not cumulative, no evidence of threats having been produced at the trial, coming to defendant after the trial, and no failure of diligence of defendant appearing. Even if it be doubtful how such evidence would affect the result in a new trial, the motion should be granted. State v. Bailey, 94 Mo. 311; State v Murray, 91 Mo. 104; State v. Downs, 91 Mo. 19; Wharton Crim. Evid. sec. 757. (2) (a) The law is plain that self-serving declarations are admissible if part of the res gestae, and it is not necessary that they should be precisely concurrent with the act. It is enough if they spring from it and are made under circumstances which preclude the idea of design. Wharton Crim. Evid., par. 691; Bish. New Crim. Proc., sec. 1086, par. 1 and 2. (b) When it is necessary to inquire into the intention of the person who did the act, proof of what the person said at the time is admissible as part of the res gestae, to show its true character. Brumley v. State, 21 Texas App. 222. Such declarations are admissible whether for or against the party making them. State v. Ware, 62 Mo. 597; State v. Evans, 65 Mo. 574; State v. Anderson, 89 Mo. 312. Statements made by defendant a few minutes after the conflict, and near the place and presence of eyewitnesses are admissible as part of the res gestae. Little v. Com., 25 Gratt. (Va.) 921; State v. Brown, 64 Mo. 367; Wharton Crim. Evid., par. 262, 263; Rouch v. Railroad, 1 Q. B. 51; State v. Graham, 46 Mo. 490; State v. Matthews, 20 Mo. 55; O'Shields v. State, 55 Ga. 696; Brunet v. State, 12 Texas App. 521. Declarations are now admitted as res gestae even when perceptible time has elapsed after the main transaction, provided they were made under the influence of the principal transaction and are so connected therewith as to characterize or explain such transaction. The ancient rule was not so, but this has been considerably modified. If not mere narrative of a past occurrence but declarations of a past occurrence, made under such circumstances as will raise a reasonable presumption that they are the spontaneous utterances of thoughts created by, or springing out of, the transaction itself, and so soon thereafter as to exclude the presumption of premeditation or design, they will be admissible as part of the res gestae. Stevens v. Walpole, 76 Mo.App. 213; 21 Am. and Eng. Ency. Law, p. 101. (3) The court erred in taking witnesses for the defense out of the hands of defendant's attorney, time and again, examining them at great length as to matters not in evidence, and in such a manner as to prejudice the jury against defendant and such witnesses. An examination of the transcript will show that the trial judge did this on several occasions during the production of testimony for the defense, several questions put by the court apparently conveying the impression of sarcasm, and tending to hold the witness up to ridicule.

Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.

(1) The newly-discovered evidence is not set out in the motion; nor does the motion show diligence in securing all the evidence. It fails to show relevancy, or that it would not be cumulative, or from whom it was expected to obtain it. State v. Cushenberry, 157 Mo. 168. (2) It is true in some cases, statements made by defendant immediately after the difficulty are admitted as a part of the res gestae. If the declarations spring from the act and are made under circumstances which preclude the idea of design, they are admissible. Such is not the case here. The true test is, were the declarations the facts talking through the party, or the party talking about the facts? Wharton's Crim. Evidence, p. 592. When the declarations are distinguishable in point of time, or are open to the suspicion of being a part of the defendant's plan of defense, they must be ruled out. Wharton's Crim. Evidence, p. 592; State v. Brown, 64 Mo. 367. (3) The court had a right under the law to ask such competent questions as he might choose in order that all of the facts might go to the jury. It was also essential to defendant's rights to have all the evidence and circumstances properly before them. (4) The trial court has a right to know the specific ground of objection, and a general objection may be disregarded. State v. Adams, 108 Mo. 208; State v. Robinson, 117 Mo. 649.

FIFTH INSTRUCTION.

The fifth instruction, referred to in the opinion, is as follows "Fifth. Upon the question of self-defense the court instructs you as follows: If you believe and find from the evidence that at the time the defendant shot said Carter he had good reason to believe and did believe that said Carter was about to immediately inflict upon him some great personal injury, and he shot him for the purpose of averting such apprehended injury, then you must acquit him on the ground of self-defense. Whether he had good reason to believe and did believe that said Carter was about to kill him, or to immediately inflict upon him some great personal injury, is for you to determine, and if you find and believe from the evidence that he did not have reasonable grounds for so believing, you can not acquit him on the ground of self-defense. The court further instructs you that the right of self-defense does not imply the right of attack, and a plea of justification in self-defense can not avail in any case where a person provoked a difficulty, or begins a quarrel with the purpose of taking the life of another or doing him some great bodily harm. Therefore, if you believe from the evidence that the defendant sought the difficulty on the occasion shown in the evidence, for the purpose of wreaking his malice upon said Carter, or of shooting him, or of doing him some great personal injury, then there is no self-defense in the case, and the danger in which the defendant may have found himself during such difficulty would not justify him in shooting said Carter."

OPINION

SHERWOOD, P. J.

Assault with intent to kill willfully, on purpose and of his malice aforethought George Carter, a negro, by shooting him with a pistol, was the charge which the grand jury preferred against Moses Lockett, also a negro; and on such charge the traverse jury found him guilty of such assault, and assessed his punishment at imprisonment in the penitentiary for the term of two years; hence, this appeal.

The circumstances which led to the shooting were in substance these: Defendant and Carter were both expressmen; rivals in that business, and stationed at the west end of Union Station on Twentieth street in St. Louis. An altercation sprang up between them on Saturday, December 29, 1900, about one or the other of them having prevented the other from securing the hauling of a piece of baggage a stranger wished hauled, and harsh words were interchanged. On the thirty-first of December, or Monday evening, the quarrel was renewed in a near-by saloon, when for words were soon substituted full soda pop bottles and bullets. There is competition in the testimony as to whether a bottle or a bullet was the missile that opened the fray, but so it was, that several soda pop bottles were thrown at defendant by Carter and several bullets were fired by the former at Carter, two of which bullets took effect in each arm of Carter's though not, it seems, breaking the bones. When defendant had fired four shots at his jaculating enemy, he retreated rapidly through the back door of the saloon, with Carter, his spring-back knife with a long blade drawn, in his hand, in full pursuit; indeed, it seems the knife was drawn before the last shot was fired. At any rate, Carter ran after defendant, the latter running, and Carter pursuing him, close on his heels and cutting at him as he ran up an alley on which the back door of defendant's house abutted; when Carter got close on to defendant, within a step of him, when Carter's feet slipped on some ice within about three feet of that door, and he fell, and this gave defendant a chance to spring through the door, when it was slammed to and locked by some member of defendant's family in order to prevent Carter from gaining access to the house.

Defendant testified when he escaped from Carter by springing through the door, just as Carter fell that: "When I went in the house I says 'Now, people,' I says, 'I'm in this trouble with this man, now look, all of you can see here's one more cartridge in the gun,' and I says, 'I could have turned around when Carter fell and put the gun right to his head and killed him,' but, I says, 'I didn't want to be no murderer and I wouldn't shoot him with the last load."

"The court: Objection ought to be made to all this incompetent testimony. It is improper and self-serving testimony, and it may be stricken out, in regard to what h...