Mackmasters v. State

Calhoon, J., delivered the opinion of the court. Appellant was indicted for the murder of his own father, and convicted of manslaughter. He was sentenced to imprisonment for forty years, which is practically equivalent to conviction of murder with direction of the jury to imprison him for life. Whether the homicide was mansluaghter or justifiable in self-defense is, in our view of the record, a close question on the testimony of the witnesses and on the physical facts. The jury determined it to be manslaughter, and their conclusion would not be disturbed without error of law. But the mere fact that the question of guilt is so close, and the penalty so grave, make it quite important that the trial should be free from serious error of law. If general violence of demeanor and vindictiveness of disposition authorized conviction of felonious homicide, it appears from this record that the deceased in his lifetime was, and the accused and others of the family are, in continual jeopardy. David Mackmasters, brother of the defendant, was produced by the state as a witness against him. He was asked on cross-examination whether he was not, up to the then present time, at deadly enmity with accused, and at various times carried a [376] gun to shoot him. We think this question called for answer to show the animus of the witness as affecting his credibility. Defendant’s objection to a question by the state on the cross-examination of his witness, Joseph Marlow, Sr., as to threats and threatening demonstrations by accused about and to deceased four or five years before the trial should have been sustained, we think, as too remote. The wife of defendant, Mrs. Nancy Mackmasters, was an important witness for him, and we think it was error to permit the district attorney to develop to the jury, in cross-examining her, that she was the mother of two children not born in wedlock. This had no relevancy to the issue, and was too heavy a load to put on defendant before an average jury in so grave a trial. Reversed and remanded.