Iron County register., 1883-07-26
The Ed. Thomas Case.

The State of Missouri, respondent, VS.. Ed
Thomas, appellant. Appeal from Irol
Circuit Court Hon. j. L. Thomas
Judge.
OPINION OF THE COURT.
The defendant was indicted for murde
in the first degree, and on trial was con
victed Of murder in the second degree an(
his punishment assessed at ten years in thu
penltentiary. The case as a whole was wei
tried and the instructions prepared by tn.
Court Of its own motion are exceptionally
good.
| They embraced within their scope tht
various grades of murder and of man.
slaughter in the third and fourth degrees
The evidence in this case was of such a ma.
| ture as to warrant instructions for these va.
| rious degrees of homicide.
The instructions given by the Court of its
own motion fully embodied those asked by
the defendant, and there was therefore no
error in refusing them.
We have carefully heard the evidence in
this case, and there would seem to be much
ground for the opinion that different YER
dict could well have been returned by the
jury; but that was . matter for them, and SO
long as proper instructions are given and
there is evidence which supports the verdict,
it is beyond our province to interfere.
State vs.. Musick, II Mo-, 4O1. But for the
very reason that the verdict Of the jury Is to-
be final In the circumstances we have men
toned, care should be taken that nothing
should occur during the trial to influence
the minds Of the Jurors and lead them to a
conclusion different from that to which they
would properly have come had improper ev-
idence not been admitted.
This is especially true where, as here, the
testimony is very conflicting, and where It
would seem to require but slight circum-
stance to turn the scale either way. We al
lude now to the Court permitting the Pros
ecuting Attorney to introduce evidence to
support the character of Ed. Seitz, whose
character had not been attacked. This was
clearly incompetent evidence. Estate vs.
Cooper, Il Mo-, 1876; Greenleaf Evid., 400;
1 Wharton Evid., 5 569.)
Ed. Seitz was the only witness who swore
that when the combatants reached the bot
tom of the hill, Joos was on the bottom and
ED. on top" The evident purpose of thus
the testimony of Seitz WAS to
strengthen his testimony before the Jury, and
by doing this to impress upon them the idea
hat the theory of self-defense had no sup
port in the facts of the case.
1t is impossible to calculate the injury
which the introduction of this evidence
hus unwarrantably and over the objection |
If the defendant introduced-didt to him. We |
.erfainlv will not osSumo that m iufury ro
suited to the defendant in consequence Of its |
sanctioned as it was by the ex-
,ress approval of the Court.
ga judgment, even in criminal case, will |
lot be reversed for immaterial errors. In
uch cases, however, courts will rarely pre-
ume that the particular evidence which had |
'een wrongfully admitted could have had no
influence on the minds of the jury" (Mc-
Knight VS.. State, 81 Ex., App. Rep. 15S and
ase cited.)
"If the minds Of the jury, mt that juncture,
we're still tremulous with indccision between
he innocence and the guilt of the prisoner,
he reception Of such testimony was suffi-
lent to turn the scale against him. And the
ourts will hesitate long before they will say
hat the violation of plain rule of evidence,
s in the present instance, did not operate to
be prejudice of the accused" Estate VS..
ager, 66 Mo-, 1872 We make no comment
n the unseemly exhibition of rivalry exhib-
ed during the trial Of the cause by physi-
lans who were summoned as witnesses, in
he hope that 1t may not again occur. "When
octors disagree" they should select some
ther arena-some other time and place than
courthouse where human being is being
led for his life or liberty-for such exhibi-
ons as were witnessed during the trial Of
his case. We will not be understood as de-
ying to attorneys the assistance which ply
clans, skilled In their profession, may give
the investigation Of wounds In cases of
omicide; but certainly by such assistance
IN be secured without bringing the wit
esses forward as contestants rather than
illnesses.
For the reason aforesaid, judgment re.
,rsed and cause remanded. All concur ex.
pt Norton, j., absent.
T. A. SHERWOOD, j.