State v. Elliott

Norton, J. —

The defendant was indicted in April, 1881, in the circuit court of Polk county, for murder in the first degree, for killing one, George Steele, on the seventeenth day of June,- 1880. The cause was subse-, quently removed by change of venue to the Dallas -county circuit court where a trial was had, resulting in a verdict of murder in the second degree and the assessment of defendant’s punishment at ten years imprisonment in the penitentiary. ■

A reversal of the judgment is sought because of alleged errors committed by the court in the reception of evidence, and in giving and refusing instructions. At the trial the court, over the objection of defendant, allowed Mrs. Chasteen and Sarah Steele to detail conversations had with the defendant soon after the killing of deceased. The object of this evidence was to establish that in these conversations defendant admitted that he killed the deceased, and it is shown by them that defendant, though repeatedly charged with killing the deceased, did not deny the fact. The admission of the evidence is fully justified by the following authorities: State v. Miller, 49 Mo. 505 ; Wharton Crim. Evid. [8 Ed.] sec. 631; Roscoe’s Crim. Evid. [7 Ed.] 53 and 54.

It is next objected that the court erred in admitting the testimony of William Elliot and AnnaEidson, taken before the justice of the peace on the preliminary examination, the said witnesses having in, the interim died. This evidence was admissible under the ruling of this court in the case of State v. McO’ Blenis, 24 Mo. 402 , which was subsequently followed in the cases of State v. Houser, 26 Mo. 431 ; State v. Harmon, 27 Mo. 120 ; State v. Carlisle, 57 Mo. 105 ; State v. Able, 65 Mo. 357 .

*355 It is next objected that the eighth instruction given •on behalf of the state is erroneous. It is as follows : “When a person strikes another with a deadly weapon in a manner calculated or likely to produce death no words of reproach or gestures, however irritating or proWoking, amount to or constitute any justification or •excuse in law for the killing, if death results from such striking.” A criticism is made upon the use of the word gestures in the instruction. We cannot see that the use of this word, as applied to the facts in evidence, was in any manner calculated to mislead a jury of ordinary intelligence, and besides'this, it is in.accord with what is ruled in the cases of State v. Brown, 64 Mo. 373 ; and State v. Starr, 38 Mo. 271 . In the case last cited it is said: “Where there is lawful provocation, the law, out of indulgence to human frailty, will reduce the killing from the crime of murder to manslaughter ; but neither words of reproach how grievous soever, nor indecent provoking actions or gestures, however much calculated to excite indignation or arouse the passions, are sufficient to free the -party killing from the guilt of murder.”

It is also insisted that the court erred in giving for 'the state the tenth instruction to the effect that while the jury should take into consideration all the statements made by defendant as a witness they were not 'bound to believe all or any part thereof, but might disbelieve the same if the facts and circumstances of the •case warranted it. In view of the fifth instruction given for defendant, to the effect that “defendant was a competent witness in the case and that his testimony was to "be weighed by the same rules that govern the testimony •of other witnesses,” without further qualification; and in view of the fact that defendant testified that deceased took a rock from his coat pocket with his right hand, and, while holding him with his left hand, struck defendant in the breast with it, letting the rock then fall to *356 the ground, and that the blow thus given made a bruised and swelled place lasting for several weeks afterwards, and that he never told anybody that deceased had hit or hurt him till long after the preliminary examination in view of these facts, and the fact shown by other evidence, that deceased, when found where he was killed, had no coat, and no rock was found in the vicinity of the-tragedy, and other facts in evidence, the instruction complained of might well have been given.

The first and second instructions ask'ed by defendant were properly refused, because the law of self-defence, under the evidence, was fully and correctly stated in the seventh instruction given for the state, and the sixth instruction given for the defence.

It is insisted that the court erred in not giving an instruction on some of the grades of manslaughter to which- the evidence might apply. The record shows that the state asked an instruction to the following effect, that if the jury believed from the evidence, beyond a reasonable doubt, that “defendant did, without the design to effect death, in the heat of passion, but in a cruel and unusual manner, kill George Steele, unless the same was done under such circumstances as to constitute justifiable or excusable homicide, as defined by the instructions of the court, they will find defendant guilty of manslaughter in the second degree.” The record shows that this instruction was objected to, and the objection sustained, and the instruction refused; and the defendant cannot be heard to complain that his request was granted by the refusal.

Counsel for defendant has not undertaken to show or point out what other grade of manslaughter, other than the one pointed out in the refused instructions, the facts in evidence would apply to. The evidence tended to show that deceased was either killed by defendant under circumstances wholly unjustifiable, and that the wound inflicted upon him with a knife must *357 have caused instant death, or that defendant killed him in self-defence. These questions were fairly submitted “to the jury, and there being evidence in the record to sustain their finding, we cannot interfere.

The record shows that two juries have passed on this case, one in the county of Polk, where the tragedy ■occurred, which, on motion, was set aside, and in the •county of Dallas, where the cause had been taken by change of venue, and both juries reached the same conclusion.

Perceiving no reversible error, the judgment is .affirmed.

All concur, except Sherwood, J., absent.