State v. Cochran

49 S.W. 558, 147 Mo. 504, 1899 Mo. LEXIS 180

• Court: Supreme Court of Missouri
• Decided: February 7, 1899
• Status: Published

Opinion

BURGESS, J.

— The defendant was indicted on the fourth day of October, 1897, for having on the seventeenth day of August, 1897, at the county of Harrison, shot, killed and murdered one George Stanbrough. He was convicted of murder in the first degree, and his punishment fixed at death. He appeals.

The indictment was found in the Harrison circuit court, at its October term, 1897. At that term the case was continued until the January term, 1898, when the court was adjourned until the eleventh day of April next following, and the case set down for the trial at that time.

When the case was called for trial defendant applied for a continuance alleging as grounds therefor the absence of one Simeon Richardson, a resident of Harrison county, but who was then temporarily absent from the State. That he had first learned of the absence of this witness on the day of' making his application; that when he gave the list of witnesses to his counsel, he designated this witness as Scott Richardson’s largest boy, and that his attorneys by mistake caused a subpoena to be issued for George Richardson, Scott Richardson’s oldest son, who was not the party wanted. They understood by the term largest boy that he wanted the oldest son of Scott Richardson,, and had him summoned accordingly. That he first learned of the mistake on the day of making his said application. That said Simeon Richardson is a boy of about eighteen years of age, ánd resides with his father near Oainsville, Harrison county, Missouri, and near the residences of George Stanbrough, the deceased, and his father and brothers; that said Simeon Richardson resided in that neighborhood until the sixteenth day of March, 1898; that in the latter part of February, 1898, and while Scott Richardson, the father of said Simeon, was absent from home, one Nelson Stanbrough, a brother of deceased George Stanbrough, came to the home of said Simeon Richardson, and persuaded him to leave home and go to Spearfish, South Dakota, furnishing him car fare and money to pay expenses, said Nelson Stanbrough accompanying him. That this was done by said Nelson Stanbrough to prevent the said Simeon Richardson from testifying in this cause on behalf of defendants, he, the said Nelson Stanbrough, being well aware of the date fixed for the trial of the cause. That the said Simeon Richardson, if present in court, would testify that in the'early part of August, 1897, and about a week before the killing of George Stanbrough, said George Stanbrough told said Simeon while visiting at the house of deceased near Blythedale, Harrison county, Missouri, that if he went to the picnic at Blythedale, he said Eree Cochran would get into trouble, because he intended to kill Eree Cochran at the first opportunity, and that he didn’t want to kill him at the picnic because there would be too large a crowd; but that he wanted to- get him out somewhere so he would be sure to get him. That said picnic referred to was held near Blythedale in the early part of August, 1897; that the witness, Simeon Bichardson, came and informed the defendant of the above statements and threats made to him by said George Stanbrough, and that defendant did not attend said picnic for fear of having trouble with said George Stanbrough.

The application was overruled and defendant saved exceptions.

The wife of deceased Stanbrough was a half-sister to the mother of defendant. Stanbrough and defendant both lived in the same neighborhood. John Briant, at whoso house the homicide was committed, married a twin sister of the wife of Stanbrough. All of these parties resided within six or seven miles of Eidgeway in said county.

On the seventeenth day of August, 1897, the defendant went to Eidgeway with one of his neighbors, one David Bain, they riding together in Bain’s wagon. While there defendant became partially intoxicated, and while on their return home, they met Stanbrough, who was driving a team and wagon, in the road near the residence of defendant.

As the teams approached each other, the defendant who had Bain’s buggy whip in his hand, remarked to Stanbrough, who al§o had a whip in his hand, “You son-of-a-bitch, is that the whip you whipped my aunt with,” and attempted to strike him with the buggy whip. When Bain and defendant arrived at the place where defendant left the public road to go to his own house, he took with him against Bain’s protest lais buggy whip, and said to him that he was going home and get his shotgun, and go down to the house of Briant to which they understood Stanbrough had gone, and whip him, Stanbrough, with the whip, and if he resisted he would blow his damned brains out.

Defendant then went home, got his shotgun, took it and the whip and went to the house of Briant, where Stanbrough was. When he got there, Stanbrough, Briant, and his wife and two small children were at Briant’s hog lot, loading some hogs in a wagon. Stanbrough was up in the wagon, the team being detached therefrom. He said to Stanbrough, “George, you damned son-of-a-bitch, you black-snaked my aunt with a blacksnake, and I am going to wear this out on you,” and began striking him with the buggy whip. He struck the deceased several times with the whip, when deceased reached down to get a whip that was in the wagon, but defendant drew his gun upon him and told him to drop it and fired a shot over his head. About this time deceased got out of the wagon, when defendant again struck him with the whip. Deceased then asked defendant to give him a fair show, which he finally agreed to do, but still kept his gun in his hand. As they stepped off a few steps to the spot where they were to fight, defendant picked up an old single tree with which he struck deceased upon the back of the neck, or upon the shoulders. The deceased thereupon took the single tree from defendant and hit him a blow over the head with it.

In the meantime, Briant was trying to take the remaining cartridge out of the gun, but being unable to do so he fired it off. By this time deceased had defendant down, was on top of, and choking him. Defendant began to call for help and Briant separated them. Defendant then asked deceased to shake hands, and they did so. He then took a seat upon the door of an out house, near by, and the parties all remained there for fifteen or twenty minutes, when Briant suggested to them that they go to the house and wash their hands and faces. Defendant then proposed to deceased that they go to the house and wash. On the way to the house defendant,said to Briant: “I wish to the Lord you hadn’t shot that load out; that was the last shell I had.” When they reached the house defendant went in, followed by Briant. After Briant got into the house he stepped into the kitchen and picked up a box of loaded shells that were on the cupboard and hid them under it, and went on into the front room where defendant was. Deceased and Mrs. Briant remained outside on the platform or porch near the well. When defendant and Briant went into the house they went into the front room, defendant sat down upon a bed, and Briant who had the gun laid it upon the bed by defendant. Briant then withdrew from the room a few minutes, and upon his return he saw defendant going through the inside door into the kitchen, and almost instantly heard the report of the gun. During this time deceased and Mrs. Briant had remained at the well, and when defendant came to the outside door of the house with his gun cocked deceased was standing with his back to him, but turned his head partially around, and as he did so defendant fired, the shot taking effect in the back of his head producing almost instant death. About the time he fell defendant remarked: “Damn him, I’ll give him a second one,” and fired another shot into his side.

Immediately after the killing, defendant picked up a piece of iron and a hoe wdrich w-ere in the yard and placed them by the side of the dead body, at the same time telling Briant and his wife that they must swear that the deceased was coming at him with them, and that he shot him in self-defense. Pie then proposed to throw the body in a ditch and cover it up, and to throw it in an old well on the farm, but Briant and his wife declined to assist him in so doing and finally dissuaded him from so doing. He then wanted to search the body for money, but was dissuaded from doing this also.

Upon the trial the defendant admitted that he 'took the whip and his shotgun and went to the house of Briant for the purpose of whipping the deceased. He denied, however, that he intended to kill him, but admitted that he had taken his gun along as a precaution or protection against the deceased. He admitted that he had his gun cocked while he Avas whipping the deceased at the wagon. He testified that as he Avent into the kitchen door of Briant’s house, after the fight down at the barn, he reached upon the cupboard and took two cartridges out of the bos belonging to Briant, and that he held them in his closedhand during the fifteen minutes Mr. and Mrs. Briant say they were in the house. He claimed that he became suspicious of the actions of Briant and his wife, and seeing his gun lying on the bed he loaded it and started outside to the door; though before he could see either Mrs. Briant or the deceased, Stanbrough, he cocked his gun and held it in readiness; that when he got to the door he saw the deceased and said, “Get from here, you son-of-a-bitch;” that the deceased picked up the bar of iron and started toAvard him, and that he fired the shot. He claims that he atos looking the deceased straight in the eye; that they Avere face to face, and when asked how it was that he shot the back of his head off, he said the deceased turned his head.

The court instructed the jury upon murder in the first degree and self-defense, and refused to instruct upon any loAver grade of homicide.

It is first .claimed that the court committed error in overruling defendant’s application for a continuance. It is conceded by defendant, however, that this depends upon Avhether proper diligence was used by him in order to procure the attendance of the Avitness on account of whose absence the continuance was applied for, and whether the facts stated in the application that he would testify to, if present, were material. It may be stated in the outset that matters of continuance rest largely within the discretion of the trial court, and that unless it be made to appear that such discretion has been unwisely exercised this court will not interfere. [State v. Maddox, 117 Mo. 667; State v. Tatlow, 136 Mo. 678; State v. Banks, 118 Mo. 117; State v. Riney, 137 Mo. 102.]

The presumption is in favor of the ruling of the court, and in order to convict it of error it devolves upon the party complaining to show that the application for the continuance was improperly overruled, and that his rights have been prejudiced by reason thereof. "When the facts are considered it can not be said that there was such an abuse of discretion in overruling the application on the ground of the want of the exercise of proper diligence in procuring the attendance of the absent witness as would justify a reversal of the judgment upon that ground.

With respect to the next proposition, that is the materiality of tho facts that the absent witness would testify to if present, it may be said that it is not in every case, even where the desired testimony is material and in all probability true, that this court will reverse the judgment of the trial court upon the ground of its refusal to grant a continuance because of the absence and want of such testimony. It is only in case that the evidence adduced at the trial would impress this court with the conviction, not merely that the defendant might have in all probability been prejudiced in his rights by the denial of such continuance, but that it was reasonably probable that if the absent witness had been present and testified before the jury a different result would have been reached by them.

Moreover, “It is not sufficient to aver that the testimony sought will be material. Of that the court must judge, and facts enough must be stated to show the connection between the testimony sought, and the case to be tried.” [Hubbard v. State, 7 Ind. 164; Moody v. People, 20 Ill. 315; Steele v. People, 45 Ill. 152; State v. Pagels, 92 Mo. 308; State v. Mitchell, 98 Mo. 657; McLean v. State, 28 Kan. 372; State v. Clark, 37 La. Ann. 128; Adams v. People, 109 Ill. 444; State v. Kindred, 148 Mo. — .]

If the absent witness had been present at the trial his evidence could only have been received for the purpose of showing that the shooting was done in self-defense, and no intimation or statement is made in the application that the defendant relied upon, or that he expected to justify the killing upon any such ground.

It is insisted that the court erred in permitting Briant who was a witness for the State to testify over the objection of defendant as to what he said in a conversation with one Champlain in regard to the rencounter between defendant and deceased. The witness had previously been asked upon his cross-examination with respect to this same matter, and no error was committed by permitting him when on redirect examination by the State, to state what he did in fact say to or in the presence of Ohamplain.

The State was permitted to prove over the objection of defendant that on the day of the homicide and before its commission while returning from Eidgeway, defendant said he would kill somebody before the week was out, and that he would “like to kill some damned old Grand Army man.” The remarks though general, were we think admissible against defendant as a threat and as showing a revengeful and malicious spirit. The fact that deceased was not a Grand Army man and defendant after he had said he would “like to kill somebody before the week was out,” also remarked that he would “like to kill some damned old Grand Army man,” did not necessarily render the statements inadmissible upon the ground that they were too general or had no reference to deceased, as the question to whom he had reference was for the consideration of the jury. “Vague threats, not against any particular person, have often been admitted, and are competent evidence.” [State v. Grant, 79 Mo. 137; Rex v. Barbot, 18 State Trials, 1251; Benedict v. State, 14 Wis. 423.]

In Hopkins v. Commonwealth, 50 Pa. St. 9, it was said: “Threats made by a prisoner within an hour before the commission of the murder, that ‘he would kill somebody before twenty-four hours’, are evidence of malice prepense, though they did not expressly refer to the deceased, and if he killed anybody in pursuance of such malice it was murder in the first degree.” See, also, State v. Hoyt, 47 Conn. 518.

The point is also made that error was committed in permitting Briant and his wife to testify as to what they said and did after defendant left the scene of the homicide. The record shows that what they said was excluded by the court, and their acts recently after the homicide, while perhaps inadmissible, could not in any way have prejudiced the rights of defendant, and the judgment should not be reversed upon that ground alone.

It is also insisted that error was committed in excluding evidence offered by defendant that deceased four or five weeks before the homicide had whipped his wife, or that defendant had been informed that he had done so, but we are unable to conceive upon what theory of the case such evidence was admissible,and none has been suggested by counsel for defendant.

It is further insisted that the court erred in refusing to instruct the jury for murder in the second degree, manslaughter in the second and fourth degrees, and imperfect self-defense, but we have looked in vain through the record for something upon which to predicate this contention. The facts show that the offense was either murder in the first degree or nothing. There was neither murder in the second degree nor manslaughter in any degree.

If after defendant and deceased had agreed to fight, and during the conflict one of them had killed the other without any unfair advantage being taken or deadly weapon being used, he would have been guilty of nothing more than manslaughter. [State v. Partlow, 90 Mo. 608, and authorities cited; People v. Sanchez, 24 Cal. 17.]

But in this case, after the defendant had pretended to make friends with the deceased, and they had gone to the house and washed their hands and faces, defendant, while Briant was unfortunately absent from the room in which they had been, arose from the bed upon which they had been sitting, placed two loaded shells in his gun which he ’ '.d taken from the cupboard, cocked it, and went stealthily to the door near the well where deceased was standing, and without a moment’s warning fired one load into his head, at close range, causing him to pitch forward upon his face upon the ground, and then fired the contents of the other barrel into his prostrate body, causing instant death.

There was no error in refusing instructions asked by the defendant, nor in giving instructions on the part of the State, as those which were given presented every phase of the case very fairly to the jury. The State’s tenth and twelfth instructions are especially criticised by defendant. It is argued that the tenth withdrew from the consideration of the jury the defendant’s rights of imperfect self-defense, and is erroneous in not requiring the existence of the elements constituting murder in the first degree to be established beyond a reasonable doubt. When this instruction is taken in connection with the State’s third instruction by which the jury were told that the law presumes the defendant innocent of any offense, and this presumption continues throughout the case until overcome by the evidence showing him guilty beyond a reasonable doubt, and if upon the whole case you have a reasonable doubt of defendant’s guilt you must acquit, it is removed from the objection urged against it [State v. Hunt, 141 Mo. 626], and there is nothing in State v. Frazier, 137 Mo. 317, which in the least militates against this view.

The criticism on the State’s twelfth instruction is wholly without merit.

A final contention is that the indictment is fatally defective in that it wholly fails to charge any offense in a logical or intelligible manner, but we are unable to concur in this position. It is true that it does not indicate the highest degree of skill, but it contains all averments essential to make a good indictment.for murder in the first degree.

Finding no reversible error in the record, we affirm the judgment, and direct the sentence to be executed.

Gantt, P. J., and Sherwood, J., concur.'