Page images
PDF
EPUB

most instantly. The testimony on behalf of the defendant was to the effect: That Breeze began the difficulty, by using profane, obscene, and abusive words to defendant, at the same time having a cue and a billiard ball in his hand, when defendant said: "Breeze, you beat me up once,-give me the worst of it. I am not looking for the worst of it again." That Breeze continued his abuse, when the bartender came out, and asked defendant to keep quiet, and defendant told him he would, etc. That Breeze renewed the trouble and abuse, told defendant he had whipped him once, and could do it again, and drew back the billiard ball as if to throw it at defendant, saying, "I will get you now," when defendant fired his pistol off, "just to scare him," when he dodged down behind the pool table, and raised up again, as if in the act of throwing, when defendant fired again, but "not with the intention of hitting him." That when the second shot was fired, though Breeze was looking at defendant when Breeze came up from behind the table, yet he turned his face away from defendant,-turned his head around from him in order to throw the ball at him. There was other testimony corroborating, to a considerable extent, that of defendant; one of the witnesses, in describing the attitude of Breeze when shot, saying, "He was facing to Dettmer, looking over his left shoulder, with his body to the wall." There was also testimony that Breeze bore the reputation of being a quarrelsome, turbulent man, and there was testimony of a contrary effect. And there was testimony that the reputation of defendant, as having a quiet and peaceable disposition, was good. After committing the crime, defendant fled, and was subsequently captured in Tennessee, where he was living under an assumed name. At the November term, 1893, of the Andrew circuit court, to which the venue had been changed, defendant filed his second application for a continuance on account of absent witnesses, which application was denied.

Thos. F. Ryan and Jas. W. Boyd, for appellant. R. F. Walker, Atty. Gen., and R. E. Culver, for the State.

SHERWOOD, J. (after stating the facts). 1. There was no error in denying defendant's application for a continuance, and this is true for several reasons: Both of the absent witnesses are permanent residents of Buchanan county, and were there a few days before the trial. The day before the trial a brother of the deceased saw and talked to both of the witnesses,-one in Savannah, Andrew county, where the cause was pending, and the other in St. Joseph. The record shows that a similar application on account of the absence of one of these witnesses had been granted by the court on a former occasion. The affidavit for the continuance states that affiant knows of no other witnesses by

whom the same facts can be proved as by the absent witnesses, and yet the record shows that there were several such witnesses who testified to the same facts at the trial. An application for a continuance must not only be formally sufficient, but one of its essential elements-its prominent featuremust be an evident good faith. It must not be a mere dodge-trial paper. Whether good faith prompts the application, the trial court is obviously the better fitted more accurately to judge. For this reason it is that it has become the uniform rule of this court to defer to the trial court in such matters, and not to reverse its action unless the party assailing that action makes it plainly to appear that the judicial discretion in that regard has been unsoundly or oppressively exercised. State v. Banks, 148 Mo. 117, 23 S. W. 1079, and cases cited. No such abuse of discretion is apparent here. Besides, there were counter affidavits filed herein by the state, and that this is the proper practice has been the settled law in this state since the early case of Riggs v. Fenton, 3 Mo. 28; State v. Bailey, 94 Mo. 311, 7 S. W. 425; State v. McCoy, 111 Mo. 517, 20 S. W. 240.

2. There was no impropriety in admitting evidence of defendant's having knocked down an old, drunken Irishman, because this was the beginning of the hostility between Breeze and defendant, as Breeze took the old man's part, and remonstrated with defendant about his unmanly conduct, which remarks led to the quarrel and fight between Breeze and defendant, resulting in the latter "getting the worst of it," and immediately afterwards making threats against Breeze, which were continued from time to time, and to different persons, almost down to the time those threats found bloody consummation in the crime which constitutes the basis of the present prosecution. It was necessary, there fore, to show the relations between the parties; the genesis of their trouble; the cause of the malice borne by defendant towards Breeze; how it had its origin; and in order to show these things-in order to understand all about the case ab ovo-it became necessary to show just how the difficulty originated, and this could only be satisfactorily done by showing that the trouble began over the attack made by defendant on the old Irishman. Otherwise, Breeze would have been made to appear as the party in fault at the very inception of bad feeling between the parties. And, if error had been committed in the reception of the testimony mentioned, that error was cured by the introduction of testimony of a similar kind in regard to the old Irishman, when defendant came on the stand to testify, at which time defendant testified that Breeze was in fault and the aggressor in the first quarrel, and gave him a very severe beating, the effects of which, de fendant stated, he still felt. The rule is unlversal in its acceptation, that evidence of other crimes, of other fights between the same

parties, or between one of them and some stranger, may be received wherever and whenever such testimony, otherwise inadmissible, has any tendency to elucidate any pending investigation, or to discover the hidden springs which prompted any litigated step or action.

3. The instructions which were given by the court were 20 in number, and embraced all grades of homicide, except manslaughter in the first and second degrees, and on other points the instructions were such as have often been approved by this court. But it is urged that an instruction asked by defendant on the subject of manslaughter in the fourth degree should have been given. When this record is carefully read, however, it is difficult to resist the impression that neither instructions on manslaughter in any of its degrees, nor on the subject of self defense, should have been given. Not on the subject of self-defense, because the right of that nature is not to be invoked unless all other means fail. It is the dernier ressort, and in order to justify a homicide on the ground of self-defense the doer of the homicidal act must have done every thing in his power, consistent with his safety, to avoid the danger and to avert the necessity, and he must retreat, if retreat be practicable. Kerr, Hom. 203, and cases cited; State v. Tabor, 95 Mo. 585, 8 S. W. 744; State v. Gilmore, 95 Mo. 554, 8 S. W. 359, 912. This rule is applicable to the facts of this case, although it has its well-ascertained exceptions. Here defendant made no attempt to avoid the dire necessity of firing the fatal shot. He did not retreat, nor even attempt to do so. He simply stood his ground, and not satisfied with firing one shot at his adversary, causing him to dodge down behind the table to avoid his murderous aim, he continued to fire after his enemy's back was turned, and when he was fleeing from him. There is abundant testimony to this effect. It is true, there is some to the contrary, but the former testimony is supported by the physical facts in the case, to wit, that Breeze is found dead with a bullet which entered the back of his head, and ranged forward over his right eye, and by the further physical fact that no man was ever known to attempt to throw at another by looking at him over his left shoul

der, or by turning away his head from him at the very instant he was attempting to throw at him! When witnesses attempt to establish a certain theory by their testimony, they must first look to it well that their testimony must not go counter to the physical facts in the case, for, if it does, neither courts nor juries are required to stultify themselves by disbelieving the immutable physical facts in the case, and so we have said on a number of occasions. State v. Anderson, 89 Mo. 332, 1 S. W. 135; State v. Bryant, 102 Mo. 24, 14 S. W. 822; State v. Turlington, 102 Mo. 642, 15 S. W. 141; Sup.) 23 S. W. 1088; Sup.) 26 S. W. 551.

State v. Nelson (Mo. State v. Nocton (Mo.

Now, regarding an instruction as to manslaughter in any degree: There is the testimony of at least three witnesses that defendant, on the night of the first difficulty, and two weeks before the last one, made ominous threats of revenge against Breeze, repeated at least twice afterwards, and down almost to the night of the homicide; that on that night, and just a short time before the homicide, Berry asked defendant to lend him his pistol, but defendant told him "he might want to use it" himself. On that night, too, while in Porter's saloon, he kept his hand in his pocket where he had his pistol, and presumably on that weapon. So that the testimony lays a broad basis for the existence of preconceived malice on defendant's part, aside from the fact of the use of a lethal weapon; and where malice is shown to have been harbored, and a fresh provocation arises to the party cherishing the malice, the provocation is to be disregarded, unless the murderous purpose can be shown to have been abandoned before the act was done, because, where provocation intervenes between expression of malice and killing, the presumption is that the killing was upon the malice, and not upon the passion produced by the provocation. Kerr, Hom. 91, and cases cited. For these reasons no error occurred in refusing to give defendant's instruction as to manslaughter in the fourth degree, nor would error have been committed had instructions as to all degrees of manslaughter been refused, as well as instructions on the theory of self-defense. These views result in an affirmance of the judgment. All concur.

END OF CASES IN VOL. 27.

INDEX.

Abandonment.

Of homestead, see "Homestead."

ABATEMENT AND REVIVAL.

In an action for breach of contract of car-
riage, the judgment of the trial court was the
cause of action on appeal, and the death of
plaintiff after appeal did not abate it.-Pull-
man Palace-Car Co. v. Fowler (Tex. Civ. App.)
268.

It is no defense to an action on a note that
defendant, before the institution of the suit,
began an action to cancel the note for failure
of consideration.-Simmang v. Braunagel (Tex.
Civ. App.) 1032.

[blocks in formation]

See, also, "Abatement and Revival"; "Contin-
uance"; "Limitation of Actions"; "Parties";
"Pleading"; "Practice in Civil Cases";
al"; "Venue in Civil Cases"; "Witness."
By and against receivers, see "Receivers."
For price, see "Sale."

Of husband and wife, see "Husband and Wife."
On contract, see "Contracts."

To set aside conveyance, see "Fraudulent Con-
veyances."

deed of trust, see "Assignment for Benefit
of Creditors."

In an action by corporate creditors to set
aside its preferential deed of trust, there may
be joined actions against preferred creditors
to compel them to pay into court money which
has been paid to them by the trustee.-Lyons-
Thomas Hardware Co. v. Perry Stove Manuf'g
Co. (Tex. Sup.) 100.

Where plaintiff in trespass to try title obtains
possession by giving sequestration and replevy
bonds, defendants may in one action recover on
both bonds.-Finegan v. Read (Tex. Civ. App.)
261.

The filing of a petition, with instructions to
issue citation, is the beginning of an action,
within a contract providing suit shall be brought
within 40 days.-Gulf, C. & S. F. Ry. Co. v.
Wilbanks (Tex. Civ. App.) 302.

[blocks in formation]

Presumption that the heirs of a wife of the
original patentee of land, who lived near to
him, had notice of the conveyance by the pat-
entee which involved a repudiation of any trust
French v. Koenig (Tex. Civ. App.) 1079.
in the land in favor of such heirs of the wife.-

Title to land does not inure to a distributee of
an estate through possession by a third person
under a lease from the administrator of the
estate.-White v. Rosser (Tex. Civ. App.) 1062.

Where the purchaser at a void tax sale has
adverse possession under a deed properly de-
scribing the land for two years, the title of the
former owner is barred.-Cooper v. Lee's Heirs
(Ark.) 970.

On note, see "Negotiable Instruments."
Particular actions, see "Assumpsit"; "Death
by Wrongful Act"; "Ejectment"; "False Im-
prisonment"; "Libel and Slander"; "Parti-
tion"; "Quieting Title-Removal of Cloud"; ants in common of their interests is not an oust-
Entry of land under deeds from several ten-
"Replevin"; "Trespass"; "Trespass to Try Ti-er of the other cotenants.-Noble v. Hill (Tex.
tle"; "Trover and Conversion."
Civ. App.) 756.

v.27s.w.-71

(1121)

[blocks in formation]

run

Where adverse possession begins to
against an ancestor, it continues against the
heir, though a married woman.-Pim v. City of
St. Louis (Mo.) 525.

Adverse possession of riparian land by a dock
company is not interrupted because any partic-
ular spot may have been temporarily vacant.-
Pim v. City of St. Louis (Mo.) 525.

Presumption as to title of one who had re-
mained in possession for 50 years, paying the
taxes, at the end of which time the land was
sold for taxes under an execution against him.
-Brown v. Oldham (Mo.) 409.

A deed conveying land patented to M. by
patent "No. 443, vol. 10," will not support ad-
verse possession of land patented to N. by Pat-
ent "No. 663, vol. 9."-Willis v. Burke (Tex.
Civ. App.) 217.

ANIMALS.

Killed on track, see "Railroad Companies."
Live-stock shipments, see "Carriers."
Transfer of brand, see "Sale."

Evidence that the fact that native cattle
treading over the ground after Texas cattle

are liable to contract Texas fever is a matter
of general notoriety does not show that a rail-
road company was aware of the fact.-Grimes
v. Eddy (Mo.) 479.

Sufficiency of evidence to justify verdict
against railroad company for damages to cattle
caused by their contracting fever from Texas
cattle which escaped from the custody of the
company while being transported through the
country.-Grimes v. Eddy (Mo.) 479.

A horse which runs away through fright is
not "running at large" within an ordinance.--
Presnall v. Raley (Tex. Civ. App.) 200.

A void judgment is not such color of title as See "Pleading."
to entitle one in possession of land thereunder
to the benefit of the three-years statute of lim-
itations.-Latimer v. Logwood (Tex. Civ. App.)

960.

Possession under a void deed will not sustain
title by adverse possession.-Curdy v. Stafford
(Tex. Civ. App.) 823.

A conveyance of such interest as "M. agent
for heirs" has in land is not a basis for ad-
verse possession under a deed.-Willis v. Burke
(Tex. Civ. App.) 217.

A deed of four hundred acres to be taken in
a square out of a survey is too indefinite to
support adverse possession, the survey being
irregular.-Willis v. Burke (Tex. Civ. App.) 217.
Where one of several cotenants of two tracts
of land deeds the whole of both tracts to a
third person, such conveyance is an assertion
of a claim to the whole on which title may be
obtained by limitation.-Byers v. Carll (Tex.
Civ. App.) 190.

Payment of taxes cannot alone create title by
adverse possession. Cashman v. Cashman's
Heirs (Mo.) 549.

-

On an issue as to the five years' statute of
limitations in trespass to try title, it was imma-
terial that defendant failed to pay the taxes
which fell due after the action was brought,
when he had paid them for the necessary num-
ber of years.-Mariposa Land & Cattle Co. v.
Silliman (Tex. Civ. App.) 773.

Answer.

APPEAL.

See, also, "Certiorari": "Error. Writ of”; “Ex-
ceptions, Bill of"; "New Trial."

In criminal cases, see "Criminal Law."

Where the value of personal property on
which a mortgage is sought to be foreclosed
exceeds $200, an appeal will lie to the court of
civil appeals, though the mortgage is for $60
only.-Cox v. Wright (Tex. Civ. App.) 294.

The time of appeal from an allowance on a
partial accounting of an executor runs from the
final settlement of his accounts.-Stanberry's
Adm'r v. Robinson (Ky.) 973.

Where no notice is shown in the record, the
appeal will be dismissed.-Wichita Val. Ry. Co.
v. Peery (Tex. Civ. App.) 751.

Appealable judgments and orders.
an order of the county court allowing an ex-
An appeal lies to the court of chancery from
ecutor's account.-Stanberry's Adm'r v. Robin-
son (Ky.) 973.

the delivery to him of property in suit pending
An order appointing a receiver, and directing
an accounting, is not a final order, from which
an appeal will lie.-Greeley v. Missouri Pac.
Ry. Co. (Mo.) 613.

Where nine suits against the same defendant
have been consolidated, and four of them were

disposed of, all separate verdicts and judg-

cases are not disposed of.-Mills v. Cooney
(Tex. Civ. App.) 207.

Payment of taxes by a third person for one
who claims by adverse possession is the same
as payment by the claimant.-Mariposa Landments, the latter are not final where the other
& Cattle Co. v. Silliman (Tex. Civ. App.) 773.
Evidence of possession examined and held in-
sufficient to show that it was of such a char-
acter as to vest title. - Kirkman v. Brown
(Tenn.) 709.

-

Affidavit.

Appeals from inferior courts.

The fact that, after the filing by defendant
of a plea to the venue in a justice court, the
case was continued by consent, was not ground
for striking out such plea when again made on
defendant's appeal to the county court.-Ma-

For mechanic's lien, see "Mechanics' Liens." honey v. Cope (Tex. Civ. App.) 157.

Of attachment, see "Attachment."

Agency.

See "Principal and Agent."

Agents.

See "Principal and Agent."

Of insurance company, see "Insurance."

Amendment.

Of pleadings, see "Pleading."

An appeal will lie to the county court from a
judgment of a justice dismissing a complaint.
-Winston v. Masterson (Tex. Civ. App.) 691.
A motion to dismiss an appeal from a justice
for want of jurisdiction must be determined on
the case made by plaintiff.-Hilderbrand v. Wal-
ter A. Wood Mowing & Reaping Mach. Co.
(Tex. Civ. App.) 826.

On appeal from a justice by a person unable
to give bond, the county judge need not state
the facts as to appellant's ability in his certifi-
cate.-Cox v. Wright (Tex. Civ. App.) 294.

Where an appeal from a justice's docket
showed "suit upon account and contracts," it

« PreviousContinue »