The State v. Porter
| Decision Date | 16 June 1908 |
| Citation | 111 S.W. 529,213 Mo. 43 |
| Parties | THE STATE v. HOMER O. PORTER, Appellant |
| Court | Missouri Supreme Court |
Appeal from Clinton Circuit Court. -- Hon. B. J. Casteel, Special Judge.
Reversed and remanded.
W. S Herndon and E. C. Hall for appellant.
(1) The court erred in refusing to permit D. M. McWilliams, Luke Grogan and Jesse Albright to testify to statements made by defendant immediately after the tragedy. These statements were part of the res gestae, and besides they tended to show the mental condition of defendant at the time of the shooting. Defendant may show his physical and mental condition at the time of the homicide. 6 Ency. Evid., p. 738; Sage v. State, 91 Ind. 141; Elliott on Evidence sec. 3042. Declarations and statements of defendant made during the continuance of the homicidal act or while its influence controls his mind are competent as part of the res gestae. 6 Ency. Evidence, p. 620; Foster v. State, 8 Tex.App. 248; Mildium v. State, 11 Ga. 615; Ingram v. State, 43 S.W. 518; Elliott on Evidence sec. 3030. (2) The testimony of Mrs. Moore as to statements made by defendant seven or eight years before the killing was too remote. (3) (a) The court failed to give an instruction on manslaughter in the fourth degree. The evidence showed that deceased, just prior to the shooting, was in a violent rage; that he told his wife to go to the devil, that they would both leave and in a way she did not want to; that he said he would kill the whole family before night; that he slammed the door as he went out of the room; that he was seen immediately after, coming towards the house with a gun, etc.; this, with the absence of any evidence of malice, entitled defendant to this instruction. State v. Darling, 199 Mo. 197; State v. Todd, 194 Mo. 377; State v. Weakley, 178 Mo. 413; State v. McKenzie, 177 Mo. 699; State v. Herman, 117 Mo. 629. (b) The court failed to give an instruction that insanity need not be proved by direct and positive evidence, that it was not necessary to prove it beyond a reasonable doubt, and that a preponderance of the evidence was all that was necessary. State v. Wright, 134 Mo. 404; State v. Bell, 136 Mo. 120. (4) The court improperly took from defendant one of his defenses by giving instruction 9, in which the court informs the jury that if defendant became insane because of his own act, then he was not insane, or, if he was, it would not excuse him. State v. Riley, 100 Mo. 499; State v. Hundley, 46 Mo. 414; Dent v. State (Tex. Crim.), 79 S.W. 525; People v. Downs, 56 Hun 5, 8 N.Y.S. 521. (5) Declarations of defendant just after the act should have been admitted upon the question of insanity. 7 Ency. Ev., p. 447; State v. Kring, 64 Mo. 591. Any material fact which might account for or naturally lead to insanity at the moment of the factum may be proved. 7 Ency. Ev., p. 449; 6 Ib., p. 606. The conduct of defendant at the time of and after the act in question may be considered upon the question of insanity. 7 Ency. Ev., p. 449; Massengale v. State, 24 Tex.App. 181; Com. v. Pomeroy, 117 Mass. 143. The legal test is whether defendant had mental ability to distinguish between right and wrong with respect to the act committed. State v. Redemeier, 71 Mo. 173; State v. Sheafer, 116 Mo. 96; State v. Wright, 134 Mo. 404; State v. Palmer, 161 Mo. 152; State v. Pagels, 92 Mo. 300. (6) The court erred in refusing instruction "I" offered by defendant. It was a correct proposition of law and was not given or contained in any of the instructions given by the court. State v. Wright, 134 Mo. 404; State v. Bell, 136 Mo. 120. (7) The court erred in refusing instruction "H," prayed by defendant. It was correct, was not embodied in any given instruction, and should have been given. State v. Wade, 161 Mo. 444.
Herbert S. Hadley, Attorney General, and N. T. Gentry, Assistant Attorney-General, for the State.
(1) As to the testimony of the witness McWilliams, elicited by defendant, on cross-examination, to the effect the defendant said, "He (the deceased) will kill us, he will kill all of us." This witness testified that he lived one-quarter of a mile from the place of the shooting, and that, after the shooting, Charles Porter hurried over to the home of the witness, and the witness went to the scene of the shooting, a quarter of a mile distant. It will readily be seen that what defendant then said was not a part of the res gestae, but a self-serving statement and was properly stricken out. And the same may be said of the excluded testimony of the witness Duke Grogan, and the excluded testimony of the witness Jesse Albright. The deceased was shot and killed by defendant before Charles Porter left the house; then Charles went for McWilliams, who was a quarter of a mile away; and McWilliams went to the place where the shooting occurred. Grogan reached that place after McWilliams did. In a case where a physician was called to see the deceased, who had been wounded in a saloon, and reached the saloon ten or fifteen minutes after the shooting, this court held that a statement by the wounded man to the physician was not a part of the res gestae. State v. Birks, 199 Mo. 273. And in another case, this court held that a statement made by the deceased, who, after he was mortally wounded, walked to his house, opened the front door, walked in and told his wife that the two defendants had made good their threats, was not a part of the res gestae. State v. Hendricks, 172 Mo. 673. Self-serving statements of a defendant are not admissible in his behalf, either from his own witness or a witness of the State. In discussing the inadmissibility of self-serving statements, Elliott says: "So the declarations of the defendant, directly after the shooting, as to why he had shot the deceased, have been held not part of the res gestae, and not admissible." Elliott on Evidence, sec. 3030; State v. Talbert, 41 S.C. 526; State v. McCracken, 66 Iowa 569; Collins v. Todd, 17 Mo. 537; Underhill on Crim. Ev., sec. 151; King v. State, 65 Miss. 583. (2) (a) The evidence of State's witness, Mrs. Lillie Moore, to the effect that she heard the defendant say that he would just as soon kill the deceased as look at him; and that he (defendant) was ready for any trouble, if it came, was admissible. Especially was it competent, as, at the time of making the last remark, the defendant was talking about his father in an up-stairs room and had a loaded pistol in his hand, and two shot-guns in the room. And the fact that this threat was made in June, 1906, and the first threat six or seven years before, did not render them inadmissible. People v. Cronin, 34 Cal. 205; State v. Ford, 3 Strobhart (S. C.) 517; Redd v. State, 68 Ala. 497; State v. Campbell, 35 S.C. 32; Everett v. State, 62 Ga. 65; Underhill on Crim. Ev., sec. 329; 1 Wigmore on Ev., sec. 108; Goodwin v. State, 96 Ind. 552; State v. Wright, 141 Mo. 337; 1 Bishop's New Crim. Proc., sec. 1110. (b) No error was committed in overruling defendant's objection to the testimony of State's witness Bayless, and in refusing to strike out said testimony. Said testimony was to the effect that the witness was working the road with defendant in the fall of 1905, and defendant said if the old man did not do by him as he did by the older children, defendant had a way to get even with him. No objection can be made to this threat on the grounds of remoteness, and it certainly showed a bitter feeling that defendant had for his father, and defendant's intentions, if that father did not do as defendant thought he ought to do. (3) The instructions on the subject of insanity were fair and indeed liberal towards defendant; their substance has often been approved. State v. Klinger, 46 Mo. 230; State v. Church, 199 Mo. 639; State v. Crane, 202 Mo. 85; State v. Duestrow, 137 Mo. 44. Even conceding that there was evidence tending to prove self-defense, defendant was not entitled to instructions on that subject. By his plea of insanity, the defendant admitted the commission of the criminal act, but interposed, as a defense thereto, that his mental condition was such that he could not distinguish between right and wrong. Judge Sherwood, in State v. Pagels, 92 Mo. 309, said that such a defense was in the nature of a plea of confession and avoidance, and that it was wholly immaterial to discuss whether or not dying declarations (or, as in this case, the question of self-defense) were properly received in evidence. The decision in the Pagels case was quoted approvingly by Judge Burgess, with the concurrence of all of the members of this court. State v. Welsor, 117 Mo. 579; State v. Stubblefield, 157 Mo. 364. Instruction 9, which defendant's counsel specially criticise, was proper, by reason of the peculiar and almost marvelous testimony of defendant. He testified that he remembered distinctly to have seen his father out in the hog lot, remembered the threat that his father had made and remembered then to have grabbed his gun and fired at him out of this up-stairs window, but did not remember anything else. Having begun a felonious assault on his father and having wounded his father, defendant is certainly in no position to claim that that assault caused him to become insane, and that therefore he should not be held responsible for the rest of his conduct, which was a completion of the murder that he had so wilfully and deliberately begun. (4) Most of the remaining complaints of defendant's counsel relate to the instructions on the subject of self-defense. But it is insisted by the State that there was no self-defense in this case, and no evidence on that subject worthy of consideration. State v. Fraga, 199 Mo. 127; Kerr on Homicide, sec. 180; Kelley's Crim. Law, sec. 517.
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