State v. Clum

Sherwood, J. — The defendant was indicted for the murder of Ella Bowe, by shooting her with a shot gun. The evidence adduced at the trial, a résumé of which will accompany this opinion, shows in the clearest possible light a most atrocious and brutal murder of two persons at the same time, without a single palliating circumstance attendant on the commission of the crime, ' and the trial resulted in a verdict of murder in the first degree and sentence accordingly. The indictment is in the usual form. The instructions are suchas have frequently received the approval of this court, and no objection was urged against them in the motion for a new trial. The only points in that motion were two: (1) That illegal testimony was admitted on the part of the state. (2) That competent and legal testimony offered by the defendant was excluded. It will be seen by an inspection of the testimony offered by the prosecution that it was in every respect competent, and pertinent to the charge contained in the indictment, and [485] besides there were no exceptions saved to the introduction of such testimony.' In relation to the second ground for new trial: Testimony of threats alleged to have been made by Ella Bowe and by J. J. White, to the effect that they would make away with or secretly take the life of the defendant, was very properly excluded. Threats alone, unaccompanied by any overt act or outward demonstration, will not justify any one in hostile acts towards those making the threats; the danger must be immediate. 1 Bishop Crim. Law [5 Ed.] sec. 843; 1 Bishop Crim. Proc., sec. 619. And if a person thus threatened, with no excuse in the way of self-defence, because of outward demonstration being made against him, kills the threatener, the slayer will not be allowed to lay before the jury before whom he is tried for .the homicide, the known threats on which he bases his unlawful action. 1 Bishop Crim. Proc., sec. 620; State v. Alexander, 66 Mo. 148; State v. Taylor, 64 Mo. 358. If evidence of mere threats would not be admissible where self-defence is attempted to be established, then a fortiori such evidence should be rejected where the homicide is the result of covert assassination, as in the present instance. And the like line of remark applies to evidence offered on behalf of the defendant, to the effect that Ella Bowe had in her possession articles which had formerly belonged to Mrs. White or Mrs. Clum, deceased, said to have been the wife of the defendant. Equally impertinent and inadmissible also, was testimony which was offered on behalf of the defendant that the death of Clum’s wife was occasioned by medicine administered by Ella Bowe and J. J. White. In short, none of the testimony on behalf of the defendant had the slightest tendency to exculpate the defendant or to abate, by one jot or one tittle, the ’enormity of his guilt. The conclusion that we have reached from an ex486 animation of the evidence and the instructions is, that the defendant has been fairly tried, and that the law must take its course. All concur.