State v. Douglass , 81 Mo. 231 ( 1883 )

Sherwood, J.

The defendant, a negress, was indicted for murder in the first degree, and on trial had, was convicted of that offense. The person killed was Joseph Miller, a negro, and the killing was done by stabbing him with a knife. Various reasons are urged, why a reversal of the judgment should occur. For the most part, the cause was well tried, but, nevertheless, such errors occurred during the progress of the trial as must accomplish a reversal of the judgment.

I. The State should not have been permitted to ask the witness, Maria Fuller, if she had been confined in the work-house, and this too, over the objections of the defendant. If the witness had been sentenced to the locality mentioned, there was record evidence of the fact which could readily have been produced. State v. Rugan, 68 Mo. 214; State v. McGraw, 74 Mo. 573; State v. Lewis, 80 Mo. 110.

II. If there was any error in refusing to let Sis Clark and Rachel Nighton testify respecting the difficulty between the defendant and the deceased which resulted in the homicide, it has not been pointed out. It does not appear that either of these witnesses knew anything about the affair. As to the witness Clark, she did not state that she saw Joe Miller at all, or that she knew him. She says she saw the defendant and “ a man standing in Johnny Elynn’s door; I did not know Joe Miller.” And she further states, that she was not there when the fuss commenced, nor when it ended, and knew nothing about it. And as to the witness Nighton, it does not appear that she knew anything that was pertinent to the matter in controversy. She says she did not see any cutting. And besides, the court gave opportunity to defendant’s counsel of stating what testimony he expected to elicit from this witness, and he refused to make any statement showing the relevancy of the testimony, and refused to avail himself of the offer made him by the court. In the absence of any showing to the contrary, we certainly shall not assume that the testimony of either of these witnesses was at all material. Aull Savings B’k v. Aull, 80 Mo. 199. On the contrary, so far as concerns the purposes of this appeal, we shall assume that the proposed testimony was valueless and without probative force.

III. Under the rulings of this court in the cases of State v. McLaughlin, 76 Mo. 320; State v. Turner, lb, 350, and State v. McGraw, 74 Mo. 573, it was error to cross-examine a defendant testifying in his own behalf, as to matters not testified upon in the examination in chief. ¥e have read the testimony of the defendant, both in chief, and on cross-examination, but do not find that the cross-examination extended beyond that in chief, at least if it did, it was as to matters so very trivial and unimportant, that we are not prepared to say that we should reverse because of anythingin the cross-examination contained.

IY. The evidence on the part of the State well warranted conviction of murder in the first degree; indeed, the evidence may be said greatly to preponderate in favor of that grade of homicide. Au instruction was given as to murder in the second degree, and one as to self-defense, and one, also, as to an involuntary killing, and the jury were instructed that if they believed that such killing was done in the heat of passion, that they should find the defendant guilty of manslaughter in the fourth degree. Under the testimony of the defendant, herself, this last instruction was properly given, and is covered by the provisions of section 1249, R. S. 1819.

But there was other testimony which, if believed by the jury, brought the case under the provisions of section 1250, since that section recognizes an intentional killing when done in the heat of passion, caused for instance by a blow, as amounting to nothing more than manslaughter in the fourth degree. This was true as to manslaughter even at common law. And an instruction under that section, should therefore, have been given. Eor the errors heretofore pointed out the judgment should.be reversed and the cause remanded.

All concur.