The State v. McKenzie
| Decision Date | 26 May 1910 |
| Citation | 128 S.W. 948,228 Mo. 385 |
| Parties | THE STATE v. HENRY McKENZIE, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Criminal Court. -- Hon. E. E. Porterfield Judge.
Affirmed.
P. D Clear for appellant.
(1) Upon a casual examination of the application for continuance it will be seen that it is in regular form. In fact, Judge Porterfield overruled said application on the ground that the evidence contained in the affidavit was immaterial. This ground is wholly untenable, since proof that deceased had a knife near his hand just after he fell shows plainly that he came from behind the counter around to the door to cut and injure defendant. The overruling of said application was plainly reversible error. State v. Farrow, 74 Mo 531. In Farrow case there were two other witnesses introduced to prove the main defense, an alibi, while here defendant was precluded by said ruling from any witness to prove the main facts of his self-defense. (2) Defendant offered to prove that within two minutes of the homicide, he told his sister, Mrs. Wilkerson, that he had killed deceased, was in the right, and to go and employ a lawyer. This evidence was primarily competent as res gestae, being so close to the main fact, and being the first expression to anyone after the homicide. State v. Castor, 93 Mo. 251. (3) There was direct evidence by defendant that he shot to keep deceased off and not to kill deceased. This establishes a plain case for an instruction on manslaughter in the third degree. State v. McKenzie, 102 Mo. 633; State v. Watson, 95 Mo. 411; State v. Edwards, 70 Mo. 480. It is long since settled law that "defendant had a right to testify as to his intent, and his testimony for the purpose of instructing the jury occupied the same footing as that of any other witness." State v. Palmer, 88 Mo. 573; State v. Banks, 73 Mo. 592. The meat counter was about twelve feet back, south from the door, extending from the east wall nearly to the west wall. Behind this was the meat block and behind the block was the meat refrigerator, from which the liver in question was, of course, taken, and cut on the block and placed on the counter. Deceased came from behind this counter around the west end to a position in front and east of the small ice box where, or nearly where, he fell, so that his head would reach to two feet from the door. Then there was substantial evidence that deceased picked up the knife found underneath the counter from where he laid it on cutting the liver, and ran around the counter with it drawn in a striking attitude. Suppose now deceased approached defendant with said knife drawn, near enough to do bodily harm, but not near enough to do great bodily harm, and the jury so found, then defendant would not have complete self-defense, but only manslaughter defense. Because here we would have a lawful provocation, which legally begets passion and negatives malice, but not sufficient provocation to completely justify a homicide. Wherever defendant has substantial rights -- as to hold property peaceably, State v. Matthews, 148 Mo. 197, or to keep his daughter free from unlawful sexual intercourse, State v. Gruggin, 147 Mo. 39, or to keep himself free from attack with a weapon, State v. Garrison, 147 Mo. 557 -- and such attack and deprivation of right reasonably excites passion, and while in such passion he commits a homicide, only manslaughter will lie. In the Garrison case, threats accompanied the attempt on defendant's life with a hatchet, but the hatchet was already thrown when defendant shot, and it was unanimously held a proper instance for manslaughter. Here deceased, just before starting around counter, said, in a threatening manner, to defendant, "By God, you will take it," and kept on after defendant around the counter, out in front thereof, until he got to a position near the door, which makes a stronger case of attempted violence, without actual battery, than in the Garrison case. There the court said, "But if the homicide be committed under a less degree of fear and in the excitement produced by the epithet and threats of deceased," etc., then the killing was manslaughter. State v. Elliott, 98 Mo. 157.
Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
(1) The first complaint made in appellant's brief is that the court erred in denying him a continuance. (a). The record shows that the information was filed November 10, 1908, the crime having been committed October 23, 1908, and appellant having been under arrest since this last date. On December 12, 1908, appellant was arraigned. The actual trial occurred December 23 and 24, 1908. The custom of delaying trials until later terms cannot be urged as a ground of continuance. Sixty days elapsed between the date of appellant's arrest and his trial. One delay of a week was granted appellant, and the record shows no complaint on the score that the time then given was too short. (b). As to the allegations respecting the witnesses Tim Jones and S. Burnett, appellant did not procure the issuance of any subpoena for either of them. Neither does the application indicate specifically what diligence had been used or means employed in "searching" for these witnesses. The statute furnishes a plain answer to the contention concerning these witnesses. R. S. 1899, sec. 2600; State v. Woodward, 182 Mo. 419. Further, appellant testified it was "Tim Holmes" instead of "Tim Jones," who told him of the threats against his life. (c). As to the witness E. A. Brown, the application states that appellant "used every effort in keeping informed of the whereabouts of said witness Brown." It does not appear when appellant first learned to what Brown would testify. It is alleged in the application that the case had been set for December 16, 1908. No subpoena to secure Brown's appearance on that date was issued. The court is not advised how or through whom Brown was located on December 18, whether Brown was married or single, what was his occupation, who it was that "creditably informed" appellant that Brown would return to Kansas City "after the holidays," how long "after the holidays" Brown would return, in what part of Kansas City Brown had his "home," nor what connection with or information concerning Brown "J. Huey" at room 14, 3d floor, No. 404 east Fourteenth street, Kansas City, had, nor whether Brown resided in Kansas City, Mo., or Kansas City, Kansas. Appellant alleges that he "located said Brown" and then sent the marshal to "J. Huey" to "inquire as to the location of said Brown." It is not stated where Brown went, what his mission was, nor that Huey had any information relating to Brown which he could or would have communicated to the marshal. On the showing in the application the trial court did not abuse its discretion in refusing further continuance. State v. Woodward, 182 Mo. 419; State v. Devorss, 221 Mo. 474; State v. Williams, 170 Mo. 206. This court is not confined to the reasons attributed by appellant to the trial court. State v. Blitz, 171 Mo. 536. The case cited by appellant is wholly unlike this case and is an authority rather against appellant than in his favor. State v. Farrow, 74 Mo. 533. (2) The offer to prove by appellant that he declared his innocence in "from two to five minutes" after the killing, was properly refused. It is now contended that this was competent as a part of the res gestae. With this contention the cases are not in accord. State v. Walker, 78 Mo. 386. "Instinctiveness is the requisite." State v. Gabriel, 88 Mo. 639. The case of State v. Castor, cited by appellant, is not in point. The admissibility of explanations of possession of stolen property is based upon a rule not applicable to cases of homicide. The Castor case demonstrates this. (3) Appellant complains that his offered instructions on manslaughter in the third and fourth degrees were not given. Neither of the instructions offered was in proper form. Further, this was no case for such instructions. The evidence for the State made out a case of murder in either the first or second degree and the defense was self-defense and that alone. The offered instructions were properly refused. The principles laid down in a late case by this court, wherein are discussed most of the cases cited by appellant, dispose of this particular contention. State v. Myers, 221 Mo. 617. "Defendant best knew his purpose in firing the fatal shot and an instruction inconsistent with his testimony on that head should not have been given." State v. Reed, 137 Mo. 138; State v. Gartrell, 171 Mo. 522. The suggestion that the court might divide up defendant's testimony and instruct as if it were only partly true, is not supported by any authority. State v. Barnett, 203 Mo. 661; State v. Clay, 201 Mo. 688. The case of State v. Elliott, 98 Mo. 157, is wholly unlike the case at bar. In this case there was evidence of "a previous grudge," and, besides, if appellant's testimony is true there was no room for half-way measures.
This is an appeal from a judgment of the criminal court of Jackson county, sentencing the defendant to imprisonment in the penitentiary for life, on a charge of murder in the first degree.
The prosecution was commenced by information filed by the prosecuting attorney on the 10th of November, 1908. The information is a full and complete charge of murder in the first degree, on the 23d day of October, 1908, of one Samuel H. Moog, by the defendant Henry McKenzie, with a revolver. As the information is in the often approved form, it is unnecessary to set it forth at length.
The defendant was arrested and duly arraigned in Division No. One of said criminal court, before the Hon. Ralph Latshaw, the judge thereof, on the 12th day...
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