State v. Kennade

26 S.W. 347, 121 Mo. 405, 1894 Mo. LEXIS 187

• Court: Supreme Court of Missouri
• Decided: May 8, 1894
• Status: Published

Opinion

Sherwood, J.

I. The instructions given at the instance of the state, covering, as they did all the points heretofore mentioned, left nothing to be desired, and were all that were necessary. Indeed it may safely be said that the instructions given were far too favorable for defendant. Whether they were or not, however, does, not matter, since defendant did not except to any of the instructions given, nor to the refusal of those refused, so that this case stands here just as if it were a civil case in which no exceptions had been saved; for the saving of exceptions occupies the same plane in criminal as in civil cases. State v. Foster, 115 Mo. 448, and cas. cit.

II. Nor was error committed in admitting any testimony over defendant’s objection as to what happened at the saloon. The occurrences in the saloon just a few minutes before the homicide, as related by Bass, elucidating as they did, the subsequent criminal transactions and giving to them their proper complexion' and expression, constituted part of the res gestee and were therefore competent evidence. Alluding to the rule excluding hearsay, an author of eminent and acknowledged authority, says: “The principle does not extend to the exclusion of any of what may be termed real or natural facts and circumstances in any way connected with the transaction, and from which any inference as to the truth of the disputed fact can reasonably be made.” 1 Starkie’s Ev. [6 Ed.], 64.

"Without the testimony of what occurred at the saloon being introduced, subsequent events resulting in the tragedy which forms the basis of the present prosecution could not have been rightly understood or readily comprehended. One of the most important things to know in the whole matter to be investigated was the quo animo the defendant began the quarrel with Morris, in order to understand why he was prepared to push matters to such an extremity as the sequel demonstrated he was. A ease very much resembling the present one has arisen in Maryland, where a similar point to the one in hand has been ruled in. accordance with the views here expressed. Kernan v. State, 65 Md. 253. See, also, State v. Gabriel, 88 Mo. 631, and cas. cit.

Besides, Morris without objection, had previously been permitted to testify to events concerning which objections were made when Bass came to testify.

III. It was competent to cross-examine defendant as to the written statement already set forth, .made and signed by defendant shortly after- the perpetration of the homicide. It was proper to do this as laying the necessary foundation for impeachment. Defendant .admitted that the statement was voluntarily made by him. A defendant can be “contradicted and impeached .as any other witness in the case.” R. S. 1889, sec. 4218; State v. Avery, 113 Mo. 475, and cases cited. And in this connection it is not to be overlooked, that defendant made only general objections to the questions on cross-examination, or what is tantamount thereto, that they were “incompetent, immaterial and irrelevant,” which, as remarked by Judge RylaNd on one occasion, is equivalent to saying “I object.”

IV. Objection was made by defendant to the ..reading of the statement made by him at the Four ■Courts, unless the whole of it were read. The court permitted.it to be read down to the asterisk, but no further, and in this committed no error, because that portion below the asterisk related to a subsequent and independent felony.

V. The testimony offered by the question as to the “business” of Cora Thompson, the deceased, was properly ruled out. She had a right to defend her domicile against an armed and turbulent intruder. Morgan v. Durfee, 69 Mo. 469. Such a right could .suffer no diminution because in her humble dwelling her mode of life was not patterned after the prohibitory precepts of the decalogue.

VI. It was wholly immaterial why defendant happened to be carrying the revolver with which he did the murder; the only pertinent inquiry in respect to the weapon was whether defendant was justified in .using the pistol upon the deceased.

VII. Defendant had testified for what purpose he had gone into the alley after Morris had been forced by his conduct to run away from the saloon, so that it was unnecessary to repeat the question, and defendant’s •conduct after be got into the alley showed that his purpose was not to invite Morris to play pool again with him. And whatever his purpose was, even if peaceful, this gave him no right to forcibly enter and search the premises of deceased in order to extend a polite invitation to Morris to play a game with him.

VIII. The inquiry by defendant’s counsel as to what he did after the homicide, was wholly irrelevant to the issue joined. An answer to such a question could shed no light upon, and afford no illustration of, his previous conduct or purpose, and consequently was incompetent and inadmissible.

IX.- It did not appear that the officer knew what the reputation of deceased as to peacefulness, etc!, was, and this alone was sufficient reason for not permitting him to answer the inquiry. State v. Brady, 87 Mo. loc. cit. 145.

Even if deceased had a reputation for being quarrelsome and dangerous, evidence of it could not have been received unless it had been previously shown that defendant Jmew it, and therefore might more reasonably apprehend danger in certain circumstances, than if that reputation had been different. As this knowledge of defendant of the reputation of deceased is affirmatively shown by his own testimony not to have existed, an answer to the question asked the officers was correctly denied. State v. Hicks, 27 Mo. 590.

X. The right of the state to recall defendant for the purpose of further cross-examination was unquestionable. He stood in that regard just as any other witness. State v. Jones, 64 Mo. 396, 397.

XI. In conclusion there is ample testimony in the record before us to warrant a verdict of guilty of murder in the first degree, and the only basis for a verdict of a less grade of crime is the testimony of defendant himself, swearing his own neck out of the halter. No one can read the evidence as preserved in the record, without being abundantly satisfied 'and impressed that defendant has not been adjudged the degree of punishment he so richly deserves; but the fault lies not with the courts but with the lawmakers. Judgment affirmed.

All concur.