The State v. Tettaton
| Decision Date | 08 January 1901 |
| Parties | THE STATE v. TETTATON, Appellant |
| Court | Missouri Supreme Court |
Appeal from Dunklin Circuit Court. -- Hon. J. L. Fort, Judge.
Affirmed.
J. P Tribble and T. R. R. Ely for appellant.
(1) The testimony of witnesses as to their opinions regarding the merits of the application for a change of venue was clearly incompetent. It is for the witness to state the facts and for the court to draw conclusions from the facts. State v Burgess, 78 Mo. 234. These witnesses might have believed all the testimony on the part of the defendant to be true have known it to be true in fact, and still have believed that he could have a fair trial. The court erred in overruling defendant's application for change of venue. The testimony was clear that there was strong prejudice against the defendant, and no witness for the State testified otherwise. While the granting of a change of venue rests within the sound discretion of the trial court, it is clear that in this case this discretion has been abused. State v. Maddox, 117 Mo. 667. (2) It was error to compel the defendant to proceed with the examination of the jurors on their voir dire before the time fixed for the trial of the cause, and before the time at which the defendant was required to plead. (3) The court erred in requiring the defendant to make his challenge from the panel of forty before the time fixed for pleading to the indictment. He should have been allowed twenty-four hours after he announced ready for trial. (4) The court erred in overruling defendant's application for a continuance. The testimony which defendant expected to prove by the absent witnesses was clearly competent on the face of the application; and the developments at the trial show its competency beyond question, if it was not already apparent. It was an abuse of discretion on the part of the court in overruling it, and it should work a reversal of the cause. State v. Maddox, supra. (5) Dr. Harrison was permitted to detail the condition of the various bodies found after the fire, at the place of the alleged homicide. This should not have been permitted unless he could identify one of them as the body of George Tettaton. It was error for the further reason that it tended to prove other homicides on the part of the defendant. (6) John Davis was permitted to testify to the condition of the wounds on defendant's head as they existed after the defendant's head had been shaved; defendant's head was shaved without his consent. It was involuntary, and was compelling defendant to give testimony against himself. (7) It was error to permit witness Esterline to testify to the action of defendant at the house of deceased more than a month prior to the date of the alleged homicide. It was too remote to throw any light upon the alleged homicide. It was in no way connected with the crime. It was no part of the res gestae. People v. Henderson, 28 Cal. 465; People v. Kalkman, 72 Cal. 212; State v. Evans, 65 Mo. 574; State v. Ching Ling, 16 Ore. 419; State v. Duestrow, 137 Mo. 44; State v. Swain, 68 Mo. 605; Montag v. People, 141 Ill. 75. (8) The court, over the objection of defendant, permitted the witness J. W. Barnett to testify to a conversation had with defendant on the day following the alleged homicide in which the witness detailed a conversation that Mrs. M. J. Tettaton, then deceased, had had with witness some time previous. This testimony was very injurious to the defendant and was clearly hearsay. State v. Grote, 109 Mo. 348; State v. McCoy, 111 Mo. 517; State v. Curtis, 70 Mo. 597; State v. Duncan, 116 Mo. 288; State v. Duestrow, 137 Mo. 44. (9) It was erroneous to permit the copy of the petition in the suit of M. J. Tettaton against the defendant to be read to the jury. Also the reading of the summons in the case. They had no probative force whatever, and did not tend to prove the guilt of the defendant. State v. Kuehner, 93 Mo. 193; State v. Tippett (Iowa), 63 N.W. 811. (10) The court erred in permitting to be read to the jury the petition of M. J. Tettaton filed in the probate court, to set out her homestead. It was clearly incompetent. State v. Kuehner, supra. (11) (a) Instruction 1 given on behalf of the State does not properly define the word "deliberately." State v. Wieners, 66 Mo. 13; State v. Fairlamb, 121 Mo. 137; State v. Avery, 113 Mo. 475 (495); State v. Ellis, 74 Mo. 207 (219); State v. Lewis, 74 Mo. 222; State v. Talbott, 73 Mo. 347; State v. Sharp, 71 Mo. 218. (b) It removes from the jury their sense of responsibility of the punishment, and was liable to render them less cautious in their deliberation. It goes further than any other instruction of like kind ever approved by this court. No case, heretofore reported, tells the jury that they are "charged with no responsibility with respect to the punishment." They have been told "that they have nothing to do with fixing the punishment." State v. Avery, 113 Mo. 475; State v. Howard, 118 Mo. 127. (12) The verdict of the jury is not supported by the evidence. There was no proof of the corpus delicti. State v. Dickson, 78 Mo. 438; State v. Jones, 106 Mo. 312; Cole v. State (Ark.), 26 S.W. 377; State v. Smith, 9 Wash. 341.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
(1) Defendant complains that error was committed in passing upon his application for a change of venue in that the witnesses were permitted to testify as to their opinions regarding the merits of the application; that is, some were permitted to testify that they believed defendant could have a fair trial while others were permitted to testify that they believed a fair number of jurors could be obtained to try the case. An examination of the testimony of the various witnesses discloses the fact that no exceptions were saved to the questions put, or answers made, so even though conceding the testimony to be erroneous, yet the defendant can not, at this late day, take advantage thereof, because of his failure to object to such testimony and properly save his exceptions. The finding of the trial court on the application for a change of venue will not be disturbed, unless the discretion and judgment which is imposed upon that court has been abused. State v. Thompson, 141 Mo. 408. (2) The record fails to disclose error on the part of the trial court by compelling the defendant to proceed with the examination of the jurors on their voir dire before the time fixed for the trial of the cause, and before the time at which defendant was required to plead. The defendant was in nowise prejudiced by the actions of the court in this regard. (3) The question of a continuance is a matter resting to a large extent upon the discretion and judgment of the trial court, and unless it appear that the judgment of that court or the discretion to be exercised by him has been abused, the appellate court will not interfere. State v. DeWitt, 152 Mo. 76; State v. Webster, 152 Mo. 87. The court committed no error in refusing the application and no prejudice to the defendant resulted therein. (4) If it should be found, as it was in this case, that all of the persons burned had the appearance of being murdered by the infliction of some mortal wound upon their persons, and that George Tettaton was one of them, then the evidence would be conclusive that he came to his death as a result of a mortal wound inflicted, as shown by the evidence, and charged in the indictment. (5) It matters not whether the defendant voluntarily or involuntarily permitted his head to be shaved. The evidence shows the shaving to have been done for the purpose of enabling the physicians to properly treat the wounds. They could have examined the head and testified to substantially the same facts with reference to the nature of the wound and the character of the instrument used in their infliction without the head being shaved as well as with it. (6) No error was committed in permitting witness Esterline to testify to the action of defendant at the home of the deceased more than a month prior to the date of the alleged homicide. It showed intent on the part of the defendant, and as such became a part of the res gestae. It might be said that this evidence partakes of the nature of a threat, and as such becomes competent. St. Louis v. Dixon, 78 Mo. 439. (7) The fact that a copy of the petition in the suit of M. J. Tettaton against the defendant was read to the jury, does not constitute reversible error. This evidence was admissible for the purpose of showing disagreement between the defendant and the deceased, and as such occupied a very important position along with other testimony in the case. (8) Objection is made to instruction 1 because it tells the jury that they are burdened with no responsibility in respect to the punishment should they find the defendant guilty of murder in the first degree, as that is fixed by law. This objection is frivolous for the reason that when the court tells the jury that the punishment for murder in the first degree is fixed by law, it is virtually informed that no responsibility rests upon them in regard to it. Defendant could not possibly have been injured or prejudiced by the court's action in this respect. (9) The instructions offered by the defendant and modified by the court are not to be criticised. The defendant was convicted of murder in the first degree. The circumstances of the case, as shown by the evidence, were such that an instruction on no other degree of murder should have been given, although by the instructions given on behalf of the State the court did instruct on the question of murder in the second degree, and defendant can not complain because of his conviction of murder in the first degree. State v. Fitzgerald, ...
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