State v. Finley

BROWN, P. J.

— Tried in the circuit court of Pemiscot county on a charge of murdering his father-in-law, M. B. Holt, on August 4, 1909, defendant was convicted of the crime of manslaughter in the fourth degree, and appeals.

Both parties resided in the village of Cottonwood Point in Pemiscot county, and were owners of ferries on the Mississippi river. A fierce rivalry in the ferry business seems to have indirectly brought about the difficulty which resulted in the tragedy. Defendant established his ferry near one long owned and operated by his father-in-law, the deceased. This displeased deceased very much, and he made many threats against defendant, to the effect that he was going to stop defendant from running a ferry, if he had to use rough means to do so. Some of these threats were communicated to the defendant before the killing took place.

It appears that the fare for a round trip across the river at Cottonwood Point was $3.50. On the morning of August 4, 1909, defendant offered to ferry a man and wagon for seventy-five cents; whereupon deceased offered to ferry him for less. The bidding continued until deceased cut the price to forty cents. Deceased then walked up on the porch of a near-by drug store and sat down. Defendant started up the street with the apparent *472 intention of passing the drug store. Deceased, who was in an angry mood, said to defendant, in the presence of several persons, “You lived in my house a year and paid no rent.” To this, defendant replied, “Come up to James’s store” [a few steps distant], “and I will show you that you received credit for every penny of the rent.” Deceased replied, “My wife stole grub for my,table last year to feed your family during six months you were loafing.” This seemed to anger defendant very much. He called deceased a liar, and walked up on the porch of the drug store and stabbed him with a pocket knife. Deceased made such resistance as he could with his fists and, after he was stabbed, struck defendant with a piece of wood which he picked up after the fight began.

As to who was the aggressor, the evidence is conflicting. Some witnesses testified that the deceased made no hostile demonstration except to stand with his fists clenched, until defendant began stabbing him; while others testified that deceased struck defendant with his fist and ran his hand in his pocket as if to draw a knife, before he was assaulted.

Dr. Sharp, a witness for the State, who attended deceased immediately after the stabbing, stated that deceased informed him that at the time he was stabbed he had left his knife with his wife; that this was the first time he had been without a knife in many years; that if he had had his knife at the time of the difficulty, the doctor would have had two men to sew up instead of one.

There is no dispute over the "fact that immediately after the quarrel began defendant walked up on the porch of the drug store where deceased was sitting; but defendant claims that he was starting in the drug store to make a purchase, and did not go on the porch to attack deceased.

*473 The evidence is uniform to the effect that deceased was a quarrelsome, overbearing, dangerous man, while defendant was inclined to be peaceable.

To shorten this opinion, we will give such other facts as are necessary to a full understanding of the case in connection with the conclusion we have reached in reviewing the alleged errors of the trial court.

I. Defendant complains of the introduction of a plat or diagram of the place where the crime was committed.

One witness for the State testified that this plat was not exactly correct. It was a very meagre plat, and we doubt if it impressed the jury in any manner. In all essential particulars it is a duplicate of another diagram introduced by the defendant. One of the witnesses made a small cross on the plat in the presence of the jury, to indicate where deceased was standing when stabbed. There are three such marks on the plat, without anything to inform us which of them was made by the witness. Neither the plat introduced by the State nor the one introduced by defendant are any help to us in understanding the evidence. They are too meagre to either elucidate or mislead; and we cannot say that the defendant was harmed by the one introduced by the State.

II. Error is assigned in the trial court’s ruling excluding the evidence of Judge Brasher, by which defendant undertook to prove an oral dying declaration of deceased. Said witness did not testify that deceased knew he was about to die; but it appears from the evidence of other -witnesses that prior to Judge Brasher’s visit, deceased had told other persons that he was “mighty bad, and bound to die.”

This was sufficient foundation for admitting the evidence of Judge Brasher. However, the record does not show what he would have testified to; therefore, *474 we cannot determine whether'Ms evidence would have been favorable to defendant or whether it was admissible at all.

The proper method for the introduction of evidence of oral dying declarations, is for the court to exclude the jury and after hearing the evidence and the foundation for its introduction, determine whether or not it should be admitted.

The defendant did not ask for the exclusion of the jury when offering evidence of oral dying declarations alleged to have been made to Judge Brasher; it is therefore impossible for us to ascertain whether the defendant was prejudiced by the exclusion of such dying declarations. [State v. Page, 212 Mo. 224 , l. c. 238.]

Complaint is further made that the court struck out a dying declaration heard by the wife of defendant to the effect that deceased said he was to blame in bringing on the difficulty. It is not contended that deceased recited the acts which he did toward bringing on the difficulty. Therefore, such statement, if made by deceased, was a mere opinion, and not admissible. [State v. Horn, 204 Mo. 528 .]

If we are to judge the excluded evidence of dying declarations by those declarations which were introduced, we would not hesitate to pronounce their exclusion a harmless error for another reason. They were mere repetitions of the testimony introduced by the State which fully established the fact that deceased brought on the fight by his insulting remarks to defendant while the latter was in the peace.

The statements regarding what deceased would have done if he had possessed a knife, were made to Dr. Sharp, the State’s witness, and testified to by him without objection.

There being no conflict in the evidence on that point, the jury must have believed that deceased brought on the quarrel which resulted in his death; *475 but as to whether he struck or attempted to strike the first blow or intended to fight at all, when he began the quarrel, are matters very much in dispute.

III. The defendant’s complaint that the court permitted the prosecutor and special counsel for the State to propound leading questions to the witnesses, is well founded. The court abused its discretion by permitting many questions to be asked in such form as to clearly suggest the answers desired. This would justify us in reversing the judgment, were it not for the fact that those leading questions did not produce the mischievous results which their authors intended. A careful examination of the testimony given by the witnesses for the State convinces us that they were not hostile to defendant nor unduly friendly to the prosecution; and when asked questions which suggested erroneous answers, they were circumspect enough not to be misled, but gave answers indicating that they relied'upon their memories and that their evidence was not tainted with personal bias. With the record in this condition, we cannot reverse the judgment on account of errors in permitting leading questions to be propounded.

IV. Defendant alleges tjiat the trial court erred in its instruction defining murder in the second degree, by using the words “violent passion,” without defining same. He cites: State v. Reed, 154 Mo. 122 ; State v. Strong, 153 Mo. 548 ; State v. McKinzie, 102 Mo. 620 ; State v. Andrew, 76 Mo. 101 ; and State v. Skaggs, 159 Mo. 581 .

These cases lend some color to defendant’s contention, but they do not justify a reversal in this case, for the reason that defendant was not convicted of murder in the second degree, but of a lower grade of crime. [State v. Haines, 160 Mo. 555 , l. c. 567.] There was evidence upon which a conviction of murder in the *476 second degree could be sustained; hence there was no error in giving the instruction on that crime.

Defendant’s contention that “violent passion suddenly aroused by insulting and abusive language ” used by deceased toward defendant would reduce the killing to manslaughter, is unsound. Mere words never justify a felonious assault with a deadly weapon. [State v. Barrett, 240 Mo. 161 , and cases there cited.]

' V. Further complaint is made of the phraseology of an instruction given on the part of the State as to the credibility of witnesses, in which instruction the jury were told to consider the “ character of each witness, his or her manner on the stand, his or her interest if any in the result of the trial, and' his or her relation or feeling for defendant or any other party or witness connected with the case.”

The words italicized are objected to as embracing too many persons. This instruction is somewhat broader than it should have been. Several relatives of both deceased and defendant were witnesses, and we are not able, after careful consideration of defendant’s arguments, to understand why the instruction was not just as favorable to him as to the State. For aught we know by the record some of the witnesses might have been related to the prosecuting attorney or special counsel for the State and that fact known to the jury and court.

We are confident that no substantial right of defendant was invaded by giving the instruction complained of. We cannot reverse judgments except for errors prejudicial to the c ‘ substantial rights of the defendant upon the merits.” This point is also ruled against defendant. [Sec. 5115, R. S. 1909.]

VI. The defendant objected to certain remarks of the special counsel for the State, and assigns error on the part of the court in failing to rebuke him. The *477 transgression of special counsel against which complaint is made, was not of a serious nature. No exception was saved to the court’s failure to rule on or to rebuke counsel, and therefore the point is not before us for review. [State v. Chenault, 212 Mo. 137 ; State v. Phillips, 233 Mo. 299 , l. c. 306.]

VII. Error is also assigned in the trial court’s action in permitting special counsel to conduct the examination of witnesses for the State. This assignment must also be disregarded. [State v. Stark, 72 Mo. 37 ; State v. Coleman, 199 Mo. 120 .]

The information must be preferred by the prosecuting attorney, but after that is done, we see no reason why a special counsel may not conduct the trial in the same manner as the public prosecutor. He is. under the eye of the court and must conform to all the rules of the court and laws which regulate the conduct of the prosecuting attorney..

Other matters of minor significance are urged by the defendant. We have considered them, but do not think they are of enough importance to deserve mention in this opinion.

The accused was defended by resourceful counsel who carefully guarded all his rights.

The record contains no reversible error, and we therefore affirm the judgment.

Ferriss and Kennish, JJ., concur.