The State v. Pollard
| Decision Date | 25 May 1897 |
| Citation | 40 S.W. 949,139 Mo. 220 |
| Parties | The State v. Pollard, Appellant |
| Court | Missouri Supreme Court |
Appeal from Buchanan Criminal Court. -- Hon. R. E. Culver, Judge.
Affirmed.
P. Y Brinton and Jno. A. Flornoy for appellant.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
(1) Objection to testimony can not be heard at this time from the fact that defendant failed to state reasons for the same at the time the question was put. A general objection is not sufficient to raise the question in motion for new trial or in this court on appeal. State v. Hope, 100 Mo. 347; State v. Moore, 117 Mo. 401; State v Nelson, 132 Mo. 197. (2) The record does not show that defendant objected to the instructions given on the court's own motion at the time they were given. He is barred all right to object to them by motion for new trial or by making demand therefor in this court. State v Nelson, 132 Mo. 196; State v. Pollard, 132 Mo. 294; State v. Paxton, 126 Mo. 500; State v. Meyers, 99 Mo. 107; State v. McDonald, 85 Mo. 542; State v. Williams, 77 Mo. 310; State v. Griffin, 98 Mo. 674. (3) Defendant can not raise the point that the court failed to instruct on all points necessary when such questions on which instructions are not given are mere collateral matters. In that event it is defendant's duty to ask the instructions before he can take advantage of the court's failure. State v. Murphy, 118 Mo. 7; State v. Clump, 16 Mo. 385; State v. Brooks, 92 Mo. 542; State v. Kilgore, 70 Mo. 546; State v. Leeper, 78 Mo. 470. (4) Under the evidence defendant was not entitled to instructions on manslaughter in the first and third degrees. The court is not bound to give an instruction based upon the testimony of defendant when such testimony is in conflict with admitted facts. State v. Bulling, 105 Mo. 225. (5) The testimony of defendant that he did not intend to kill goes for nothing, where the evidence shows circumstances of great atrocity and cruel, blood-thirsty malignity, and no instruction need be given upon such testimony of the defendant. State v. Brown, 119 Mo. 527. (6) No exceptions were saved, as far as the record shows, of defendant's objections to jurors Swope, Prindle and Roedde. He could not be heard thereon in his motion for a new trial, and of course can not be heard in this court. (7) The record does not show that the stenographer absented himself from the court room during the argument of counsel, neither does it present a single instance where improper remarks were made by counsel for State; nor does it show that any objections were made to juror Cummings. Matters set out in the motion for a new trial do not prove themselves. The record must show all facts about which complaint is made.
Murder in the first degree is charged in the indictment and the verdict supports that charge. Joseph Irvin is the person alleged to have been murdered, and the murder is stated to have been committed by shooting with a pistol on the thirtieth day of July, 1895.
In the preceding August defendant, a negro, had made threats against David Irvin, another negro, and had attempted to kill him then, but was prevented. These threats were made to David Irvin, and also in his absence. Laura Mitchell, who, it seems, is defendant's aunt, and had "helped raise him," testified that in the preceding August defendant was at her house, and seeing David Irvin pass by going down the railroad, he said: "The d -- d black son of a b --, I intend to kill him."
Between sundown and dark of July 30, before going to Irvin's, defendant called at Jennie Jackson's and told her that he was going down to see Dave Irvin; that he had heard through some white folks at Platte City that he had been talking about him. Jennie Jackson lived in the same neighborhood as did the Irvins.
On the evening of the day in question, about 8 o'clock, the lamps being lit, and when some of the family were eating and others had finished eating supper and all were seated, Laura Mitchell, who was seated at the open north door of the kitchen where the supper table was, when looking out of the door, saw defendant almost at the door and exclaimed: "Law, there's Jim Pollard."
Pollard, who had his coat thrown over or wrapped around his left hand, immediately stepped into the doorway and saying, "Dave Irvin, you are the very man I am looking for," pulled his revolver from out of his left hand where he had it concealed under his coat, and began firing at David Irvin, one of the shots narrowly missing David Irvin's head, who was sitting in a chair, and lodging in the door-facing at the south end of the room, some four feet from the floor. Joe Irvin, a brother of David's, was then seated in a chair a short distance south from his brother. Firing the second time, defendant again missed his intended victim, and struck Joe Irvin "in the goovel of the neck" (as one of the witnesses expresses it) causing Joe's death in a few days thereafter. Upon the firing of the second shot, David Irvin sprang up from his chair, which was quite close to the door, knocked up defendant's pistol arm and ran out into the yard and northward toward and around the chicken house, defendant firing two more shots at him while he was running. After running around the chicken house, and thus escaping his pursuer, David Irvin ran around to the south side of the house and entered the south door there.
Meanwhile, defendant, foiled in his murderous design, fled and was not apprehended for some months afterward at Plattsburg in Clinton county.
The testimony of Dave Irvin as to the occurrences at the house, is fully corroborated by four other witnesses who were present at the time, and substantially corroborated by them as to what occurred in the yard after the shooting in the house.
On his own behalf, defendant testified to a former difficulty with Dave, and that Dave had been making some threats about him, and in order to avoid having any trouble with him he left home in the spring, and was on his return the thirtieth day of July. He admitted that he saw Jennie Jackson just before he went to Irvin's, does not deny the statement she made as to what he said when there. He stated that he started the afternoon of July 30 to see his aunt, Laura Mitchell, who lived at Steele's; that he stopped a few moments at Jennie Jackson's; that on his way to Steele's from her house, when about half way between Steele's and Irvins, he looked back down in the kitchen of Irvin's house, there was a light burning there, and there he saw his Aunt Laura sitting down right at the door, and so he turned around and went back down there; that just as he got to the door Dave, who was sitting there, "raised with a knife" and said "You little copper-colored son of a b -- you, I will kill you," and struck at him (not with the knife) but with his fist, hit him on the breast and knocked him down; then they had a fight in the yard; that seeing he could not get out of the way as Dave had him down, he pulled his gun out of his pocket and shot, aiming to shoot up in the air, and shot merely to scare Dave off, and did not intend to kill anyone. He further testified, in response to a question from his counsel:
Although he testified as to Dave having a knife in his hand and drawn on him, and although he testified that Dave had him down, yet he...
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