The State v. Parker

• Citation: 72 S.W. 650,172 Mo. 191
• Parties: THE STATE v. PARKER, Appellant
• Decision Date: 24 February 1903
• Court: United States State Supreme Court of Missouri

72 S.W. 650

172 Mo. 191

THE STATE v. PARKER, Appellant

Supreme Court of Missouri, Second Division

February 24, 1903

Appeal from Jackson Criminal Court. -- Hon. Jno. W. Wofford, Judge.

Reversed.

Jno. M Dougherty, Ralph S. Latshaw and Jos. S. Brooks for appellant.

(1) The court erred in refusing to strike out from the dying declaration, "did not make a threat and never had made a threat against him. I did not think he was going to shoot me as I had never given him any cause to shoot me. I had never had a quarrel with him. I never made any threats against him in my life. I had not touched a drop of liquor for over a month. . . . I know of no reason whatever why he shot me except as above set out." State v. Jefferson, 77 Mo. 136; State v. Draper, 65 Mo. 335; State v. VanSant, 80 Mo. 67; State v. Chambers, 87 Mo. 406; State v. Parker, 96 Mo. 382; State v. Elkins, 101 Mo. 344. (2) Dying declarations to be admissible must be restricted to identification of the accused, to the act of killing, and the circumstances immediately attending it, and are inadmissible as to all other matters. State v. Draper, 65 Mo. 335; State v. VanSant, 80 Mo. 67. (3) The court erred in giving the instruction as to the weight the jury should give to the dying declaration. State v. McCannon, 51 Mo. 170; State v. VanSant, supra. (4) The court erred in refusing to give the instruction asked by appellant as to threats made by deceased against appellant before the killing. State v. Harrod, 102 Mo. 590; State v. Grant, 79 Mo. 113; State v. Evans, 65 Mo. 574. (5) The court erred in refusing to give the instruction asked by defendant upon the law of self-defense. The instruction given by the court does not fully and correctly declare the law as to self-defense. State v. Grugin, 147 Mo. 39. (6) The court erred in permitting the prosecuting attorney to say to the jury in his closing argument: "Where is Jimmy Parker, the son of this defendant, who was an eyewitness to this transaction, and testified at the other trial of this case; where is Jimmy Parker?" The witness had not been subpoenaed by the defense nor had been offered by the defense. State v. Weaver, 165 Mo. 1; State v. Fairlamb, 121 Mo. 150; State v. Moxley, 102 Mo. 392. (7) The court erred in giving instruction 3 on the part of the State, and did not therein correctly define murder in the second degree. Murder in the second degree is not defined by our statute and the crime in Missouri is the same as at common law. At common law it was necessary to use the word "feloniously" in charging or defining murder in the second degree. The instruction tells the jury that if "the defendant willfully, premeditatedly and of his malice aforethought did," etc., and omits the word "feloniously." (8) The court erred in refusing to permit appellant's counsel to ask witness Mrs. I. G. Miller this question: "You may state what, if anything, he had in his hand?" The deceased at the time was standing in front of appellant's house, had threatened to shoot appellant, who was at the time inside the house. Appellant offered the testimony on account of the fact that deceased at the time of making the threat was standing in front of appellant's house and evidently intending to carry out the threat.

Edward C. Crow, Attorney-General, and Jerry M. Jeffries for the State.

(1) The testimony shows that the dying declaration admitted in evidence was the declaration of one who was conscious of impending death, with no hope whatever that he would recover. This was all that was necessary to prove to make the declaration competent evidence. State v. Kilgore, 70 Mo. 546; State v. Wensell, 98 Mo. 137. Where the condition of declarant (as it was in this case) was of itself such that deceased must have known that he could not survive the injury, it was not necessary that he should have used any expression of his belief that he could not or would not recover. State v. Wensell, 98 Mo. 137; State v. Turlington, 102 Mo. 642. (2) Defendant had no right to prove that at the time deceased made a threat against him many days previous to the homicide deceased had a knife in his hand. Defendant was not present at the time or place when witness said deceased threatened defendant. Such evidence was certainly immaterial and to say the most for defendant its exclusion did not in any manner prejudice his interests. (3) The objection made by defendant to certain questions asked by the State's attorney, such as if witnesses did not know of defendant's being arrested and fined, was sustained. The objection, however, stated no grounds for the objection either to this question or to the previous question aimed at by it. As an objection to the previous question it came too late, and the action of the court was not error, for defendant should have stated a reason for his objection. State v. Young, 153 Mo. 445; State v. Rapp, 142 Mo. 443. (4) During the argument of the case Mr. Hadley, one of the State's attorneys, said to the jury, "Where is Jimmy Parker, the son of this defendant, who was an eyewitness to this transaction and testified at the other trial of this case; where is Jimmy Parker?" To which defendant objected as an allusion to the failure of defendant to bring the witness to the trial. Such remark could not prejudice defendant, yet it was proper. Where the State alluded to witnesses defense had subpoenaed, but did not use them, held, no error. State v. Emery, 79 Mo. 461; State v. Hopper, 71 Mo. 425; State v. Kring, 1 Mo.App. 438. (5) Where the law laid down in a proposed instruction is embodied in one already given by the court it is not error to refuse the proffered declaration of law. State v. Berkley, 109 Mo. 665; State v. Pratt, 98 Mo. 482; State v. Ferguson, 29 Mo. 416. Improper instructions on a grade of crime higher than that of which defendant was convicted is no ground for a new trial. It is not necessary to notice instructions for murder in the first degree. Defendant was convicted of murder in the second degree. State v. Wisdom, 84 Mo. 177; State v. Kelly, 85 Mo. 143.

GANTT, P.J. Burgess and Fox, JJ., concur.

OPINION

GANTT, P. J.

From a conviction of murder in the second degree in the criminal court of Jackson county, at the September term, 1901, of said court, the defendant prosecutes this appeal.

The indictment was preferred on the 27th day of October, 1900, and the defendant was duly arraigned and pleaded not guilty. He was tried at the April term, 1901, and convicted of murder in the second degree, but a new trial was granted and the case was again tried at the September term of that year, and again resulted in a conviction of murder in the second degree.

It is not deemed necessary to reproduce the indictment, as it is in all respects sufficient, and such as has met the approval of this court on numerous occasions. The facts developed on the trial were substantially the following:

The defendant was the father-in-law of the deceased, Edward R. Carl, and on the day of the homicide, the 9th day of June, 1900, they were and had been for some months both residing in the same house, No. 1240 Jefferson street, in Kansas City, Jackson county, Missouri. The defendant was the proprietor of the house and the deceased and his wife were staying with him, the deceased having no regular employment at the time, but was assisting in a general way about the house. The defendant was keeping a boarding house at the time. The defendant's evidence and the dying declaration of the deceased was the only testimony as to what occurred at the time of the homicide.

The defendant testified that on the morning of the 9th day of June, 1900, he arose somewhere between 7 and 7:30 o'clock, and went to a closet in the back yard of the premises and returning went up stairs to wash, in a room in which deceased was dressing himself. He testified that he went to a washstand, picked up a washbowl and emptied the water into a receiver and started to or did pick up a pitcher of water to put some water in the bowl to wash. Just then Carl, the deceased, said "I am going away to-day," to which defendant replied, "I am very glad of it Sallie [the wife of deceased] will have some satisfaction." Deceased said, "You old s -- n of a b -- h, I will fix you now." "I turned and as I turned he kicked at me; I went on, and when I got down on the steps four or five steps at the turn of the stairs, the banisters came round, and I turned my head around, Mr. Carl [the deceased] was coming right on and I turned my head around. Carl was coming right on and said, 'You old s -- n of a b -- h, I will cut your guts out.' He had a razor in his hand. I reached back in my pocket this way [indicating] and shot. I didn't know whether I hit the man or not. I didn't take any aim. When I got down to the bottom of the steps I met my son and daughter. When I went out to the closet I had on my pants, shoes and stockings and my undershirt. I had my pistol in my right hip pocket. I had my pistol in my pocket when I went up stairs. When I entered the front room up stairs, the southeast room, Carl was wiping his face with a towel, at the washstand, which stood a little past the center of the room on the east side. When Carl said 'I'll fix you now,' I turned and as I turned he kicked at me. I walked straight out and he reached over and picked up his razor with his left hand. I was two or three feet from him when he reached for the razor and probably four or five feet from him when I got to the door of the room, east of me. We were both walking. I went out and turned to the right to go down the steps. I got down four or five steps when I shot him. He was still at the top of the steps. He didn't make a swipe at me, but had the razor in his hands. When I shot, my back was to him and in a...