The State v. McCollum
| Decision Date | 31 January 1894 |
| Citation | 24 S.W. 1021,119 Mo. 469 |
| Parties | The State v. McCollum, Appellant |
| Court | Missouri Supreme Court |
Appeal from Linn Circuit Court. -- Hon. W. W. Rucker, Judge.
Affirmed.
A. W Mullins for appellant.
(1) The evidence of Jonas Cooper as to threats by defendant toward the deceased should have been stricken out (Burns v Railroad, 24 Mo.App. 10); and this is true whether proper objections to the evidence were made or not. State v. O'Connor, 65 Mo. 374. The admission of improper testimony in criminal cases is not cured by an instruction for its exclusion. Such evidence has its effect upon the minds of the jurors, often seriously prejudicial to the defendant, which cannot be erased by a mere instruction. State v. Thomas, 99 Mo. 234; State v Daubert, 42 Mo. 242; State v. Mix, 15 Mo. 153; State v. Wolff, 15 Mo. 168. (2) The fifth instruction given for the state was erroneous. State v. Bailey, 57 Mo. 131; Raysdon v. Trumbo, 52 Mo. 35; McDermott v. Donegan, 44 Mo. 85; Wein v. State, 14 Mo. 125; Haegele v. Western Stove Co., 29 Mo.App. 486. (3) The state's eighth instruction should not have been given. It is not the law and is misleading and unauthorized by the evidence. (4) Under the evidence in the case the court should have instructed the jury on one or more degrees of manslaughter, and having failed so to do, thereby committed reversible error. State v. Tabor, 95 Mo. pp. 595, 596. (5) And the court on its own motion ought to have given, in this regard, proper instructions. State v. Crabtree, 111 Mo. 136; State v. Branstetter, 65 Mo. 149; State v. Banks, 73 Mo. 592; State v. Palmer, 88 Mo. 568.
R. F. Walker, Attorney General, and Morton Jourdan, Assistant, for the state.
(1) No objections were taken or exceptions saved to the evidence complained of. (2) The court rightly confined the instructions to murder in the first and second degrees. (3) The evidence was sufficient to warrant the verdict and this court will not interfere. State v. Moxley, 22 S.W. 575.
-- Defendant was convicted in the circuit court of Linn county of murder in the second degree, and his punishment fixed at fifteen years' imprisonment in the state penitentiary for shooting with a pistol and killing one John Baker. The case is in this court on defendant's appeal. The facts are about as follows:
Defendant was appointed guardian of his minor half sister Esther McCollum, whose parents being dead, she lived with him and her younger brothers, defendant being a bachelor about thirty-five years of age. An attempt was made by John Baker, the deceased, an uncle of Esther, and one W. Allmond to have the latter appointed guardian of Esther in place of the defendant. This matter was discussed at a school meeting held on the seventh day of May, at which time deceased said there would likely be trouble over the affair; that if defendant did not behave himself and do better that he would go down there and show him what he, deceased, could do.
It appears from the testimony that the defendant had heard of some declaration of Allmond in regard to the matter, and that he said to several persons that if Allmond, or Baker, the deceased, either, intended doing what they said they would do with reference to the change, he would kill them; that on the ninth day of May the deceased was given two copies of a notice of some character (the testimony does not disclose exactly what), one copy to be served upon defendant by delivering it to him, and the other to be kept for the purpose of making the return of the service; that on the morning of May 10 the deceased rode down to the residence of the defendant, hitched his mule in full view in the lot near the house, went to the back door to inquire the whereabouts of the defendant, and when he was informed that defendant had gone to work, went out to the barn to look for him; not finding him, he returned to the house, went in, sat down for a few minutes, talking to the children, when one of the children announced, "here comes Dan," meaning the defendant, when deceased went out in front of the house to meet him. Some words passed between them, and the defendant fired two shots from his pistol when about six or eight feet from the deceased, killing him instantly, the deceased falling upon his face to the ground. The defendant mounted his pony, which was standing near, and rode away, going in the direction of Allmond's. When, on the way, he met G. B. McCollum he drew his revolver and said, "hell's up down there," and when asked where he was going, said he was going to kill Allmond; and after a posse had been organized by the sheriff for the purpose of arresting him, he surrendered to that officer.
The body of the deceased was searched and the ground around him where he fell after being shot was closely examined, but no weapon was found. A copy of the notice delivered to the deceased to be served upon the defendant was found, which the evidence tends to show deceased had gone to the house of the defendant to serve upon him by delivering him a copy. No one saw the difficulty except the parties engaged therein.
The defendant testified in his own behalf that when he met deceased in the yard deceased said to him, defendant: Deceased never spoke after the shooting. The court instructed the jury for murder in the first and second degrees.
The first point for our consideration is with respect of the action of the trial court in not excluding the evidence of several of the state's witnesses as to threats by the defendant towards one Allmond, who it seems was acting in concert with the deceased in having defendant removed as the guardian of Esther McCollum, and himself appointed in his stead. While defendant's counsel made no objection to this testimony at the time, he did ask to have the testimony of one Jonas Cooper as to such threats stricken out; but the motion was overruled. It does not appear from an examination of the record that any exceptions were saved at the time to the ruling of the court and for that reason there is nothing here for review with respect thereto. State v. Foster, 115 Mo. 448, 22 S.W. 468; State v. DeMosse, 98 Mo. 340, and cases cited; State v. Musick, 101 Mo. 260, 14 S.W. 212.
It is contended however that as such evidence was...
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