State v. Cook , 84 Mo. 40 ( 1884 )

Martin, C.

The defendant was indicted and convicted of murder in the first degree for killing a woman named Emma Shore. It was developed in the evidence that the defendant, a negro man, raised in Washington county and reputed to be of a peaceable disposition, although frequently seen under the influence of liquor, had been acquainted for some considerable time with the deceased, a young girl of his own race, to whom his attentions had been latterly paid in the character of a suitor. Early in the afternoon of July 5, 1883, the defendant was seen by witness, Mahala Clark, who-learned from him that he had just come from • an interview with the deceased who at that time was residing at Mr. Wallace’s, and that there had-been along talk between them, which had terminated in his disappointment and discomfiture. After detailing the result of his interview he added: “ If that girl don’t do me any good, she shall never do any other man any good.” A short time after this conversation, possibly a short time before it, the defendant called at the residence of one Nathan Ennis, whose wife, Lucy, seems to have been an intimate friend of the deceased, and asked of Lucy Ennis whether or not the deceased would be there that night, remarking at the same time that he intended to come up. In answer to his inquiry, Lucy Ennis informed him that she did not know of her intention to be there. The defendant then left.

A short time after dark he returned and found her there. The evidénce fails to disclose anything particular as happening between them. He stayed but a few moments, and then left, carrying away under his arm the hat of the deceased, seemingly in a playful manner, requesting Lucy Ennis not to inform the- deceased of the fact. As soon as he left, the deceased along with Lucy Ennis, went over to the residence of witness, Margaret Johnson, which was within hearing distance from the house of Nathan Ennis. The defendant on leaving repaired to witness, Hulsey, from whom he borrowed an unloaded pistol, remarking that he expected to go with the hack that night to Mineral Point, and might need a pistol. After obtaining this pistol the deceased is next seen by witness, Jennings, from whom he borrowed a nickel, stating at the time- that he wanted to buy beer ■with it. After borrowing the nickel he exhibited the pistol to Jennings, uttering at the time these words: “Jim, dirt to-night — dirt to-night.” Failing to obtain cartridges at a drug store near by, he visited the store of Mr. Murphy, and upon repeating his contemplated trip with the hack to Mineral Point, he succeeded in buying some. He then made his. way back to the residence of Nathan Ennis, where he had left the deceased. On reentering it he was told by Ennis that he supposed the deceased had gone home. This statement was made in answer to the defendant’s inquiry for her. He then left ■the hat which he had brought back and started off in the direction of the deceased’s home at Mr. Wallace’s. Very soon after he left loud talking was heard at the residence of Margaret Johnson, whither the deceased with Lucy Ennis had gone. Peter Casey and John Whitley went over there from the Ennis house, attracted by the loud talking. Casey entered the house and Whitley remained at the door.

The defendant was there seen following the deceased from room to room with a pistol protruding from his hip pocket, stating that he wanted to speak to her, that he wanted her to speak one word to him ; that he wanted her to come to the door to speak one word ; that he wanted her to bid him good-bye. This she told him she would not do until he laid his pistol aside, a weapon she never had seen him carry before. He answered that he could not do as she requested, and that she would be sorry for her conduct. During the interview he at one time pulled out the pistol, but returned it to his pocket upon Lucy Ennis’ running between them. He had been ordered out by Margaret Johnson. Finally Lucy Ennis, remarking that she heard her child crying, started back towards her residence, the deceased and Peter Casey accompanying her. The defendant declared that he would go home with the deceased, and started in company with them. As the party was passing down the declivity which led from the house they were leaving, the defendant stumbled and came near falling. After recovering himself he placed his hand on the deceased’s shoulder, and asked her to excuse him for what he had said and done at the house. To this she answered “no,” assigning as a reason that she had already excused him too many times. He insisted again that she ought to excuse him, but she made no further reply.

On passing a branch, which extends through the hollow they were traversing, Lucy Ennis was a few steps in front and the defendant, the deceased, and Peter Casey were coming on abreast. After crossing the branch the defendant fell back a step or two behind the deceased and Peter Casey, and called out to Lucy Ennis asking where she was. Immediately after her answer indicating where she was, the defendant discharged his pistol at the head of the deceased, and she fell, declaring in her last words that the defendant had shot her. The defendant disappeared in the darkness and was heard running swiftly up the hollow. Another shot was heard a few minutes afterwards in the direction he had run; and according to' witness, Magaret Harris, the defendant afterwards appeared at her house asking to be admitted and fired two shots on her porch, and left upon her refusal to admit him. The bullet entered the back of the deceased’s head, passed inward and downward to the first bone of the spinal column, producing paralysis of the body, in which condition she lingered till her death on the 25th of August following.

At about 9 o’ clock the next morning the defendant was discovered at the Teasdale farm, about half a mile from Potosi, lying among some bushes in a fence corner. Upon being informed that he had shot Emma Shore he said that he did not know it, adding that he had shot himself too. There was a knot on his forehead and some wounds and blood on Ms face ; but the evidence fails to indicate any injuries to his person of a serious nature. He asked for a drink of water, and soon afterwards disappearedi On the 8th of July, the day of his arrest, he was seen by a witness at the farm of a Mr. Dawson, about three miles from Potosi, lying in a corn crib, between some hay and a log of the crib. He answered to Ms name and upon request of the witness placed Ms pistol within reach -where it was taken. He did not seem to know where he was. The witness covered Mm with a piece of carpet and left Mm. A witness, John Flynn, testified that the defendant called at his residence early in the evening of the homicide -while he was at supper, and wanted witness to buy him a suit of clothes, which he ref used to do. The witness thought'that defendant acted strangely but was satisfied that he was not at the time intoxicated. There was evidence tending to prove that defendant Was intoxicated after the homicide when he called at a livery stable between 1U and 11 o’ clock in the evening.

The defence consisted of the plea of insanity. One physician testified that in his opinion the defendant was insane, basing his conclusion chiefly upon the supposed attempt of the defendant to take his own life. Two •physicians concurred in the opinion that he was perfectly sane. One of them attended Mm after Ms arrest, and the other one had known him from childhood. The defendant testified from the witness stand, and informed the jury that he had no recollection of any of the facts appearing in evidence against Mm; that he did not know where he obtained the pistol or where he had been on the night of the homicide, and that he had no. recollection of shooting himself or any one else.

In the motion to set the verdict aside it is alleged that Forester, one of the jurors, had expressed an opinion adverse to the defendant which he failed to disclose when examined on Ms voir dire. The court received evidence bearing upon this imputation. Dr. Taylor testified that immediately alter the homicide he was called into attend to Forester’s wife who was ill; that while there, Forester, in the presence oí his wife and mother-in-law, expressed a willingness to go np and hang the defendant. This statement was positively contradicted by Forester under oath ; and his wife and mother-in-law, who were said to have been present, testified that no such declaration was made by him. Witness, Lancaster, testified that Forester had expressed in his hearing an intention of condemning the defendant, should he be called upon the jury. This declaration was also contradicted by Forester under oath. In corroboration of the juror, Mr. Evans, the prosecuting attorney, testified that after the jury was sworn said witness, Lancaster, called him to one side and asked him why he had accepted Forester as a juror, alleging as a reason for his inquiry that Forester had worked with defendant and for the defendant’s attorney, and that he had told witness that if he was called to serve upon the jury he could not hang the defendant. Upon this evidence the court found that the charge of prejudice against the juror was not sustained. This finding being supported by evidence, which it was the duty of the trial judge to consider and weigh, cannot be disturbed in the appellate court.

I have examined the instructions carefully for the purpose of satisfying myself that the defendant has had a fair trial in compliance with proper enunciations of law governing the evidence submitted, and they seem to me to be such as have been often approved in the adjudications of this court. It has been objected that the fourth instruction wherein the court says to the jury: “That in determining what weight you give defendant’s testi-mony, you should consider the fact that he is the party accused and on trial in this cause,” constitutes material error calling for a reversal of the judgment. In the case of State v. Maguire, 69 Mo. 197, this court approved an instruction in the following language: “The jury are instructed that by the statutes of this state the defendant is a competent witness in his own behalf, but the fact that he is a witness testifying in his own behalf, may be •considered by the jury in determining the credibility of his testimony.” In State v. Zorn, 71 Mo. 415, the following instruction was approved: “The defendant is competent to testify as a witness in this case, but the fact that he is the defendant may be shown for the purpose of affecting his credibility.” In State v. McGinnis, 76 Mo. 326, an instruction reading as follows was approved: “That the defendant has a right to be a witness in his own behalf, yet, in weighing his evidence and the weight to be given thereto, they have a right to take into consideration the interest that he has at stake in this case.”

It is • objected that in the use of the word “should,” instead of “may,” in the instruction complained of, the court has exceeded the authority of the foregoing cases, and invaded the province of the jury. I fail to perceive any force in the distinction or weight in the objection. It is provided in our statutes of criminal procedure that no person shall be incompetent to testify as a witness, by reason of being the person on trial, or by reason of being the husband or wife of the accused, but that ‘ ‘ any such fact may be shown for the purpose of affecting the credibility of sueh witness.” It is, also, expressly provided that a refusal of the accused to testify shall not be commented upon or construed to his detriment. R. S., 1879, sections 1918, 1919. Under the common law, the fact that the witness was on trial in the case totally disqualified him from giving any evidence whatever. The ground of this disqualification included conT siderations of self-interest, which spring from the inherent weakness and fallibility of human nature, considerations which no constitution or laws could safely ignore. Neither are they ignored in our laws. They unquestionably regard.the accused on triabas occupying an attitude materially different from that" of all other witnesses in the case; in disabling the state from calling him as a witness, in giving him the privilege of testifying or not at his pleasure, in guarding him against injurious comments and reflections when he declines to make himself a witness ; in protecting him from cross-examition in respect to matters about which he has not seen lit to testify, when he avails himself of the privilege of taking the witness stand, and in the cautioned credibility attributed to his testimony. If the attitude of the accused, when he takes the witness stand is in truth different from that of all other witnesses according to our laws, I am at a loss to perceive any error in the court so treating him, and in reminding the jury of such undoubted fact. This, I conceive, the court can do without subjecting itself to the criticism of singling out a witness in its instructions for the purpose of throwing distrust upon his testimony. There can be no such other witness as the accused. The fact of which the jury is thus reminded is one which they ought to consider ; and I am free to say that in my judgment no jury could faithfully discharge its sworn duty who fails to do so.

The instructions approved in the foregoing cases constitute nothing more than a prudent reminder of this duty. It is upon no other construction they can be interpreted as having any point or meaning, for they assert in words merely that the jury is at liberty to consider a certain fact, which in its nature and tendency bears upon the credibility of the accused when testifying in his own behalf. Why should the court refer to this important and material fact, distinguishing the accused from all other witnesses, unless it intended that they should not overlook, but remember it in their deliberations ? The instruction complained of in this case only performs the same office in language slightly changed. In other words, the object and import of the instructions heretofore approved by this court, will be found clearly expressed in the instruction complained of. It certainly docs not, any more than the previous instructions, assume to declare how the fact shall be considered whether favorably or unfavorably to the accused. It simply declares to them that they should consider it as bearing on the credibility of the accused. As it is a fact which in our laws, as well as in the nature of things, bears upon his credibility, I see no error in telling the jury that they should consider it thus, in its true tendency and light. The admonition to some juries and in some cases might be unnecessary and superfluous. But in no case can I conceive it to be erroneous. The instruction cannot in any sense be regarded as equivalent to a command to discredit the testimony of the accused, without doing violence to the obvious and customary meaning of the words in which it is expressed.

In the circumstances attending and surrounding the action of the defendant, all the essential ingredients and revolting incidents which constitute and usually distinguish the capital offence of which he has been convicted are painfully present, the motive, the premeditated malice, the deadly weapon, the felonious and cowardly assault, without provocation or excuse, the fall of the slain, and the flight of the slayer, assisted in his escape by the protecting shadow of night. He has had his vengeance and his day in court. The law has adjudged him his deserts; and if he has any further claims for his life they ought to be preferred before another department of the state.

In my opinion the judgment should be affirmed. DeArmond, C., concurs, for reasons given in a separate opinion. Ewing, C., dissents, for reasons given in a separate opinion. Henry, C. J., and Sherwood, J., dissent.