State v. Duncan , 116 Mo. 288 ( 1893 )

Sheewood, J.

I. If there was any error in the court permitting the Hon. Chester H. Krum to prosecute on the part of the state, such error cannot avail the defendant, because he distinctly waived any such objection and saved no exception to the substitution mentioned. Besides, under the provisions of section 643, Revised Statutes, 1889, the court had the power to appoint an attorney to represent the state in the case of the sickness or absence, as was the case here, of the regular prosecuting officer. Moreover, aside from statutory provisions, there exists an inherent power in a court, if there be no prosecuting officer in attendance, to appoint a temporary representative of the state. State v. Moxley, 102 Mo. loc. cit. 384, and cases cited. And the fact that in the absence of the circuit attorney, the trial court permitted another to represent him, was tantamount to an appointment.

II. The indictment in this cause is in usual form, and would be unobjectionable, even against a demurrer ■or motion in arrest, and even were it not thus free from flaw, objection could not be taken to it, as was here attempted, ore teams. State v. Risley, 72 Mo. 609; State v. Meyers, 99 Mo. 107. For this reason the objection made by the defendant to the introduction of any evidence because of the insufficiency of the indictment was, consequently, untenable.

III. The only way a party can take advantage o£ an error occurring during the progress of the trial is by properly excepting; presenting the point in his .motion for -a new trial, and when that is overruled, saving the point in his bill of exceptions. Affidavits of what occurred in the presence of the court cannot usurp the province or function of a bill of exceptions, nor save matters which can only be preserved in such bill. State v. Hayes, 81 Mo. 574; State v. Musick, 101 Mo. 260.

The objectionable remarks alleged to have been made by Judge Krum in his opening statement, and in his concluding argument, not having been preserved in the manner above noted, are not legitimate subjects of comment in this court, since the affidavits offered to prove such remarks are no evidence that such remarks were made. State v. Welsor, 21 S. W. Rep. 443, and cases cited.

IY. Contention is made that error occurred in permitting an armed guard to be stationed by the defendant “during the entire trial, and during .the time he was testifying.” There is nothing of the kind preserved in the bill of exceptions to show that such objection was takbn until the third day of the trial, when the defendant was the last witness examined. There was no force in the objection, even if an “armed” guard did constantly attend the defendant during the trial and while he was testifying. Certainly the mere statement of defendant’s counsel preserved in the bill of exceptions does not prove the existence of the fact. But, if it did, there was nothing improper in an armed guard keeping watch over a defendant charged with murder in the first degree, and who, if much of the testimony heretofore recited is true, is a desperate and dangerous character. Furthermore, it is competent for the court to direct in what manner a prisoner when in court shall be kept. A prisoner is in the custody of the law when he enters the court room for trial, and some courts during that period order even a bailed prisoner into the charge of the sheriff. 1 Bishop on Criminal Proceedings, sec. 952a.

The same line of remark applies to an officer attending Newman, indicted for murder in the first degree, and brought into court to testify in behalf of defendant on hab. corp. ad. testif.

Y. It is claimed that error occurred in impaneling the jury; that incompetent jurors were selected. There is no proof of this in the bill of exceptions, and the recital of it in the motion for new trial would not prove it; such motions do not prove themselves. State v. Musick, supra; State v. Hayes, supra; State v. McDaniel, 94 Mo. 301. Nor could the affidavits filed with the motion establish the truth of the statements the motion contains. Ibid.

YI. Certain errors in the admission of the evidence on the part of the state alleged to have occurred during the trial, will now be noticed.

(a) Objection was made during a recess of court that a revolver had been exhibited on the table of counsel for the state before it had been called for. This objection was invalid because of the time at which it was made, if for no other.

(b) But it was invalid in any event because it is always competent to exhibit to the jury by way of illustration, models, tools, weapons, implements, etc. This is everyday practice, and one that serves a very useful purpose. 1 Bishop on Criminal Proceedings, sec. 965, and cases cited.

(c) The objection, however, did not go to the use of the pistol when called for, but because it was there before that time. What harm the mere anticipatory presence of the pistol on the table could do the cause of the defendant is very difficult to conceive.

(d) The remark made by Stark to officers Maloney, and Conners when pointing out the defendant, “there is the man that did it,” was undoubtedly competent as part-of the res gestae, State v. Gabriel, 88 Mo. 631; State v. Moxley, 102 Mo. 374; 1 Bishop on Criminal Proceedings, sec. 1085; 1 Wharton on Evidence, sec. 259; State v. Walker, 78 Mo. 380.

(e) Maloney had stated in his examination-in-chief that he saw defendant rise from behind the bar and fire the fatal shot which killed Brady. The state then propounded this question to the witness: “Have you any doubt, Mr. Maloney, as to the fact of Duncan rising from behind that counter and delivering the shot as you have described it?” This question was objected to on the ground that it called for the opinion of the witness. This is a mistake; the question merely sought to ascertain of the witness if he was firm in his conviction of having seen defendant rise and shoot, and his answer was: “I have no doubt, for I saw him positive.” Both question and answer were entirely legitimate.

(f) In, State v. Jackson, 95 Mo. 623, it was ruled that evidence was admissible to show that a prisoner had requested another to secure'tools so that he might effect his escape, and by parity of reasoning, evidence was competent to show that defendant had saws on his person in jail with the intent to make his escape in case of a conviction.

(g) Newman having testified in chief that it was Stark that killed Brady, was asked'on cross-examination why it was that kb had never disclosed to any one before the important fact that Stark, was guilty apd defendant innocent, although two years nearly had elapsed, etc., and when he avoided the question and evaded reply he was pressed for an answer, but would only parry the question by asking others. The objection to pressing the witness in this way was not tenable. The very object of cross-examination is to sift the witness; to winnow out from his story the chaff of mistake and the tares of falsehood, leaving as the residmm nothing but the grains of original truth. When a witness is thus being sifted and tries to evade a legitimate question in the mode already mentioned, adverse counsel should not be permitted to interpose frivolous objections to rapid cross-examination, thereby affording the recalcitrant witness a breathing space and opportunity to fabricate some plausible reply.

(h) Evidence was wholly inadmissible that Starks had admitted that he “had done some shooting there that night.” This proposed evidence wasthe merest hearsay. Even had Stark directly admitted that he had killed Brady, evidence of such admission would still have been hearsay. State v. Evans, 55 Mo. 460.

VII. 'There was abundant evidence, if believed by the jury, to support the verdict of guilty of murder in the first degree, and then there are besides the confession made by the defendant, and his admission' made to the officers when he came from behind the bar and was compelled to surrender.

■ VIII. It remains to discuss the instructions. They were those usually given as to murder in the first and second degrees, and instructions were given also on the theory of self-defense, which to say the least of them were very liberal indeed.

The seventh instruction as to the doctrine of falsus in uno, etc., was in usual form and correct and it was proper to give it as there was much conflict in the testimony which was irreconcileable with any theory except one which would justify the giving of such an instruction.

It is, however, insisted that instructions should have been given covering manslaughter in the third and fourth degrees.. There is no sound basis for such instructions presented by this record, and for these reasons: If the police officers were not endeavoring to arrest the defendant; were not acting in tbeir official capacity as peace officers, then the defendant, had the undoubted right to resist them and their unlawful assaults just in the same manner and to the same extent as.those of a private individual. The law throws around an officer its “special protection” only while engaged in the performance of some official duty; not otherwise. State v. Clayton, 100 Mo. loe. cit. 521, and cases cited. If, then, the officer or officerswere not honestly endeavoring to arrest the defendant, but were simply endeavoring to wreak their personal malice against him, then the instructions given on the theory of self-defense were all that defendant could of right demand. If, on the contrary, the defendant was only engaged in resisting lawful arrest, there was in legal contemplation no hot blood, none of the elements or conditions of manslaughter in the case; for, in such circumstances,“passion is wickedness and resistance crime.”

After a careful examination of the record, discovering no error therein, we affirm the judgment and direct that the sentence of the law be carried into execution.

All concur.